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HomeMy WebLinkAbout1975-10-28 Regular MeetingsizAn { MINUTES OF OFFICIAL ACTIONS OF COUNCIL' OCTOBER 28, 1975 7:30 P.M. The cost of publishing, the following proceedings and claims is $ Cumulative cost to date during this calendar year said publication is '$ The Iowa City City Council met in regular session on the 28th day of October, 1975, at 7:30 P.M. in the Council Chambers at the Civic Center. Present: Brandt, Czarnecki, Davidsen, deProsse, Neuhauser. Absent: none. Mayor Czar- necki presiding. _It was -moved by-deProsse and-seconded'-by,Davidsen to con- _..! sider the amount read thus far to be a full reading and to approve the minutes of the Official Actions 'of -the 'Council meeting of October 14, 1975,.;subject_to correction. Motion carried, unanimously. Fredine Branson, Chairperson of the Housing Commission,. appeared and presented correspondence requesting Council to remove the Tenant -Landlord Ordinance item -from the Council agenda until the Housing Commission had reviewed it. It was moved by Brandtand seconded by Davidsen that the request be - granted. It was moved by Davidsen-and seconded by Neuhauser that the minutes of the meetings of Riverfront_Commission, 10-16-75, and Parks and Recreation' Commission,;; 10-8-75, be received and filed. Motion carried, unanimously. It was moved by Brandt -and -seconded by Neuhauser-that-the _ recommendation by the Parks and Recreation Commission that there be a free swim period` during,playdayon Saturdays 'be- tween 10:30 and 11:00 A.M.-be.adopted. Motion carried, unani- mously. It was moved by Brandt and seconded by Davidsen to set a public hearing to temporarily vacate Madison Street from Iowa to Washington. for November 11, 1975,' in the Council Chambers. Motion carried, unanimously. After explanation of the changes in the site plans for Plaza Centre I by City Manager Neal Berlin', and discussion by Council, it was moved by Davidsen and seconded by Brandt, to approve the site plan for'Plaza.Centre I with instructions to the City Manager and _City 'Attorney to draft contract amend- ments. The vote was taken on the motion, Brandt, Czarnecki, Davidsen, and Neuhauser voting "aye",'and-deProsse voting "nay" _Motion carried, 41l.- Page 2 'Council Minutes October 28, 1975 Councilman Brandt expressed concern over the above -ground utilities in the alley behind Plaza.Centre I and in downtown Iowa City. It was moved by -Brandt -and seconded by Neuhauser- to instruct -the city Attorney to prepare the necessary docu- ments to provide for underground utilities in downtown Iowa City. Motion carried, unanimously. It was moved by Brandt and seconded -by Davidsen to approve the financial summary fortheDepartment-of Finance for July and August. Motion carried,.unanimously. It was moved by Neuhauser and seconded by Brandt to ap- prove the additional position of Senior Clerk -Typist in the Department of Community Development to up -grade the position of Clerk -Typist currently employed in that Department. Motion carried, unanimously. It was moved by Brandt and seconded by Davidsen that the rule requiring that ordinances be considered and voted on for passage at two Council meetings prior to the meeting at which - it is to be finally passed be suspended, and the first and second consideration of Ordinance 75-2787, Rezoning Plum Grove Acres Tract of Land from RlA Zone to -CO Zone be waived, and that the ordinance be voted upon for final passage at this time. Roll call: Ayes: Brandt, Czarnecki, Davidsen, deProsse,--Neu hauser. Nays: none. It was moved by Brandt and second6dby Davidsen that the Ordinance No. 7S-2787 as -recorded in Ordinance Book 9, page 64, be finally adopted. Roll call: Ayes: Czar- necki, Davidsen, Neuhauser. Nays: Brandt, deProsse. Ordi- nance adopted, 3/2. -It was moved by Neuhauser and seconded'by Davidsen that this -zoning beconsidered by the Planning and Zoning Commission for a less restrictive use. Motion carried 4/1, Brandt voting "no". It was moved by Davidsen and seconded. - by Neuhauser that the letter from Buce Glasgow, President of Plum Grove Acres, objecting to the CO Zone be received and filed. Motion carried, unanimously. Mayor Czarnecki called attention to the letter from Wil- bert Frantz asking for deferral of action on their rezoning request in Mount Prospect Addition, Part 3, from RlA to RlB and R2 zone. It was moved by deProsse and seconded by Brandt that the request be deferred indefinitely. Roll call on the motion, Brandtvoting"aye", Czarnecki, deProsse and Neuhauser:voting "no", Davidsen not voting. Motion not adopted, 1/3. After further discussion, it was moved by Davidsen and seconded by Brandt that the previous motion to defer the rezoning as requested-... Roll call on the motion, Czarnecki. and Nouhauser voting "no';Brandt, Davidson, and deProssc voting "aye".. Motion carried, 3/2. Page 3 Council Minutes October 28, 1975 It was moved by Brandt and seconded by Neuhauser to adopt Resolution 75-383, recorded in Resolution Book 33, page 114, -Accepting the Work on the 1975 Asphalt Resurfacing Program done by L. L. Pelling Construction. Roll call: Ayes: Davidsen, deProsse, Neuhauser, Brandt, Czarnecki.' Nays: none. Resolution adopted, 5/0. It was moved by Brandt and seconded by Davidsen to adopt Resolution No. 75-384, recorded in Resolution Book 33, page 115, Approving the Contract and Bond for Bob Madget, Inc., for U.R.-R14 Demolition and Site Clearance Project S. Roll call: Ayes: deProsse, Neuhauser, Brandt, Davidsen, Czar- necki. Nays: none. Resolution adopted, -5/0. It was moved by Davidsen and seconded by Neuhauser to adopt the following resolutions recorded in Resolution Book 33: (1)EstablishingLoading Zone-on.the North Side of Washington Street Commencing at a Point 30 Feet East of Clinton Street Extending to a -Point 145 Feet East of Clinton Street for a Period of, 15 Minutes (Res. No. 75-385, page 116), (2) Estab- lishing Loading Zone on the North Side of Washington Street Commencing at a Point 120 Feet East'.of Dubuque Street' -Extend- ing to a Point 270 Feet East of DubuqueStreet` for a Period.of 15.Minutes, (Res. No. 75-386, page 117), (3) Establishing One - Way Eastbound Traffic in the East-West Alley adjacent. to Chauncey Swan Plaza (Res. 75-387, page 118). Roll call: Ayes: Neuhauser; Brandt, Czarnecki, Davidsen, deProsse. Nays: none. Resolutions adopted, 5/0. It was moved'by-Brandt and seconded by deProsse to adopt Resolution No. 75-388, recorded in Resolution Book 33, pages 119-123, Vacating Blane Roc Addition, located within the same area contemplated for the University;Lake;..Apartment buildings. Roll call: Ayes: Brandt, Czarnecki,- Davidsen, deProsse, Neuhauser. Nays: none. Resolution adopted, 5/0. 'It was moved by Neuhauser and seconded by Davidsen that Resolution No. 7S-389, recorded in Resolution Book 33, pages' 124-125, Approving the Revised Combined Preliminary and Final Large Scale Residential Development -Plan of University Lake Apartments, be adopted.,_ Roll call: >_Ayes: Davidsen, Neu- hauser, Brandt. .Nays: _Czarnecki. Abstain: _deProsse. Reso- lution adopted, -3/0/1 Councilwoman deProsse asked that the reason for her abstention be 'recorded. She stated that she - found this issue the most confusing she had encountered while on the Council and regretted the fact that -she had not had time to address herself -,to it, so did not, feel comfortable in making a vote she: would be unable to defend. Council dis- cussed Planning and Zoning's recommendation that the City pay i' Council- minutes97 5 _ October 28� Page 4 bicycle the 6' Publicwould be the cost ofthe. e.t share passed share in feet; Council had p a proportionate (925 lineal d that -as t the Council ath and wThewC ty Manager note then fee l that necessary 400)• Staff would would take the resolution+ tthe bikepath, with favor Of.: funding- meeting_.held was In TOpriate attend was provide:.aPP - the El. hlanClay btana- _ called attention ater Mayor Czarnecki October all The discussed Mezvinsky on Davidsen _The items. advise that d that Congressman CouncilwomeAbbie_Sto.t Mezvinsky , ed -by himself City Clerk_ Transit. -minimal - ger Berlin and and mass Subsidy are to a one Year Sharing o crating sharing for were Revenuemass transit P revenue sharing gp- chances for robably reStric450,000-:revenue consideration at will P of our be taken into Congress AS $200,000 have renewal. this will mass transit. Davidsen to budget time. seconded i Book 33, Neuhauser and Resolution Ment. Plat of Business Develop eve -It It was moved by 390, recorded in Community roved t Res theSPreliminaKiaft, Director of had aPP ons adop `App roving_ Dennis an.Zoning Commission two °P 126, Addition. the st pulation that the P?at' and Inc,, 1st that Planning explained Plat with be ;shown encies: meet' sthelfollowingdngting sfacsubJ tor the preliminary $ewer a satithe ect of providing- --plat W1 tted-inclu the final P be subm and,encumbranCes of installs- aPPrallalegal documents to liens_ ted_c-- viins mOtion _ (a) t be institu The previous document -relative dePplate. al seconded .y legal and (b) sanitary sby BrIandt and preliminary prop It was moved byBook 33', page tion and cost of a the 75-390, ApprovingResOlutioFinaI plat, was withdrawn• as recorded in the to written to adopt Re as No 75 -391, -Approving Subject for:BDI lst Additi°np 392, sanitary Book 33 ,`page concerning Davidsen, 126, and Resolution No. Attorney roll Calle Re5O1u- Resolution the Cit title•- aye,. recorded in preLl pare, by on "voted agreemeanasremoPal Brandt, and Czarnecki sewer Neuhaus to adopt deprosse� 5/0 Neuhauser ware tions adopted,- Seconded for Nagle Mini - moved by,deProsse an LSNRD sanitary sewer re - ,s sani_ Resolution It kas 75-392, cerninS Resolution No. the greemei. co as recorded in deProsse, sub)ect t° and Zoning, Davidsen, tion adopted,. houses Planning call:: Nays. es' no Resole commended age 128. `Roll _ Book "33, page Czarnecki- adopt Neuhauser, deProsse to 292 and seconded by Boot_ 33, P e 1 5/Q. c tion. c r Pro- Neuhaurd Re_olu It was moved by recorded in Impact State" �o Resolution NO-75pile of Intent not to Pile Environmental Page 5 Council Minutes October 28, 1975= jects under the Provisions of Title I of the Housing and Com- munity Development Act of 1974. Roll call:- deProsse,_Neu- hauser, Brandt adopted, 5/0. Czarnecki, Davidsen: 'Nays: none. Resolution It was moved by Neuhauser and seconded by Brandt to adopt Resolution No. 75-394, recorded in Resolution Book 33; -pages 130-131, Requesting Release of Funds for Projects under TitleI of the Housing and Community Development -Act of: 1974. Roll. call: Ayes: Brandt, -Czarnecki, <Davidsen,l DeProsse,-Neuhauser. Nays: none. Resolution adopted,5/0. The Mayor also called attention to the matter of the Appre- ciation Party held for employees, with presentation of service awards to_employees. Attorney Hayek -advised -that if it is held, it should be a part of personnel procedures, a,clearly under` stood employee benefit. There were three Council votes against continuing with the party. Councilwoman_deProsse noted; there should be some other way.to compliment the employees It was moved by Brandt -and seconded by Neuhauser that the letter from Arthur A. -Neu, Lieutenant Governor, State of Iowa, regarding -Legislative, Session in Iowa City be received and filed. - Motion carried, unanimously. It was moved by Davidsen and seconded by Brandt to adopt' Resolution No. '75-395 recorded in Resolution Book 33, page, 132, Approving Refund of Cigarette Permit for King's Food Host, 1401 South Gilbert.- Roll call: Ayes: Brandt, Czarnecki, Davidsen, deProsse, Neuhauser.• Nays: none. Resolution adopted, 5/0.' Upon recommendation by the Mayor to make an appointment' to the Electrical Board, it was moved ,by Davidsen and seconded by deProsse'to-adjourn -to Executive Session. Roll call: Ayes: Brandt, Czarnecki, Davidsen, d_eProsse,i,Neuhauser. Nays: none. Executive Session, was held and adjourned to:regular session. It was moved by deProsse and seconded by-Davidsen-to-reappoint James Hynes, 621 Dearborn Street to the Board of Electrical- Examiners and Appeals, term expiring October 26, 1979. Motion carried, 4/0/1, Brandt abstaining. It was moved by Davidsen and seconded by Neuhauser'to ad-' journ the meeting at 10:00 P.M. Motion carried, unanimously. Mayor ATTEST City Clerk COMPLETE DESCRIPTION OF ACTIVITIES OF -COUNCIL OCTOBER 28., 1975 7:30 P.M. The Iowa City City Council met in regular session on the 28th day of, October, 1975, at`7:30_P.M. in :the Council Chambers at the Civic Center. Present: Brandt, Czarnecki, Davidsen, - deProsse, Neuhauser. Absent: :none:_ Mayor Czarnecki -presiding. It was ;moved by deProsse and seconded -by Davidsen:'to con- sider the..am ount read thus far to be ;a full reading and to ap- prove -the minutes of the Official Actions of the Council meeting of October 14, 1975, subjecttocorrection. Motion carried, 'r unanimously. Fredine Branson. Chairperson of the Housing Commission -appeared and presented correspondence -requesting Council tore -77 move the Tenant -Landlord Ordinance item from the Council a enda ��(�� until the Housing Commission had reviewed --it. It was-moved'by Brandt and seconded by Davidsen that the request-be:granted. Jim Shive from Shive-Hattery and Associates presented a Resolution concerning the Large Scale Residential Development _for the Nagle Mini -warehouses He was advised that it would be discussed along with Items No. 19 and -20.—'` John_Kammermeyer 2 -Woolf -Avenue appeared questioning the date to be set for public hearing on the vacation of a portion of Madison Street. He was advised that it could be on November 11th. It was moved by Davidsen and seconded by Neuhauser-that the minutes of the meetings, of Riverfront Commission. 10-16-75, and nn Parks and Recreation Commission 10-8-75 be received and filed. (p Motion carried, unanimously.--'�` It was, moved by Brandt and seconded by-Neuhauser that the' recommendation by the Park5 and Recreation Commissionthat there be a free swim period dun ng p�1yd�y on a nrdays between 10.30 and 11:00 A.M. be adopted. Motion carried, unanimously./ It was moved by Brandt and seconded by Davidsen to set a Public hearing to temporarily vacate Madison Street from Iowa to Washington for November -ll 1975,in the -Council Chamber—s. Motion carried, -unanimously. After, explanation of the changes in the site plans for Plaza Centre I by City Manager Neal Berlin and discussion by Council, it was moved by Davidsen, and seconded by Brandt to approvethe site Plan _.r_e_J_wi.th instructions to the City ).Jana - ger and City Attorney to draft contract amendments. Robert Page 2 Activities of Council - October 28, 1975 welsh,, 2526 Mayfield Road, appeared with several questions which were discussed. Attorney John Hayek`noted that -the easement agreement will cover construction, maintenance and liability. He asked that if any Councii_members were not in a position to vote "yes" on the contract amendments, to -not -vote "yes" ; on this motion either.The Council concurred that -they 'did notwant toreferthe matter of the extra 4' on the alley, to the Planning; and Zoning Commission'. The vote was then•" taken -on the motion,.Brandt, Czarnecki, Davidsen and Neuhauser -`'voting-"aye":, and .deProsse voting "nay". 'Motion' -carried$ 4/l. - The ;Mayor commented that this points out the complexity of the situations in each building' process, and use of executive ses-' -- sion has: proved effective. Mayor Czarnecki called attention to the meeting held with Congressman Mezvinsk on October 27th at the Hi blander, attend- e y himself, Councilwomen Davidsen an Neu auser,ity Mana= ger Berlin and City Clerk Abbie'Stolfus. The items discussed were ReypnUe Sharing and Mass Transit-. Mezvinsky advised that chances for mass transit operating subsidy are minimal and that Congress will probably -restrict revenue sharing to a one year> revenue sharing -goes for `renewal._ As $200,000 of our `$450,000 mass transit, this will have to be taken into consideration at budget time. Councilwoman Davidsen requested that informal discussion be scheduled soon with Attorney Hayek concerning his memorandum D on Build�n torium, After the discussion it could be re ferred"to the Planning .and Zoning .Com mission and the Riverfront Commission. Discussion also touched -on -the tie-in between the design review ordinance and the Comprehensive Plan, this memo- randum -also received, from Attorney -Hayek. - Mayor Czarnecki noted that the announcement concerning appointment to the Electrical rical Board would be delayed,_ and Council would adjourn toexecutive session'to.discuss it after this meeting The Mayor also called attention to the matter of the ciation'Party held for employees, with presentation of service --awards-to employees. Attorney, Hayek_advised that if,it is held, it should be apart of personnel procedures, a clearly -under` stood employee benefit. There; were threeCouncilvotes against continuing with the party. Councilwoman deProsse noted there "should be some other way to compliment the employees. Councilman Brandt ex ressed concern over the, above -ground utilities in the alle behind'Plaza=Centre I AM' in downtown �r Iowa`City. It was moved by Brandt and seconded by 14eubaussr o instruct the City Attorney; to;prepare-the necessary docu- - ments to provide for -underground utilities in downtown Iowa City. Motion carried, unanimously. ' v _ � 1. uu1uu ana votea on for _ passage at two Council meetings_prior to the meeting at which it is to -be finally passed be suspended, and -the :first and second consideration of.9rdinance-75-2787 -Rezoning Plum Grove Acres Tract of Land fromRIAZone to C0 Zone be waived and that'the ordinance be voted upon for £inal assa e'at this time. j Roll call:. -Ayes: Brandt, Czarnecki, Davidsen, deProsse, Neu- hauser. Nays: none. It was moved by Brandt and seconded- by-Davidsen that the Ordinance No. 75-2787 as recorded in Ordinance Book -9, page 64, be_fina ly adontgd. Ro11-_call:> Ayes: Czar- necki, Davidsen,'Neuhauser. Nays: Brandt, deProsse. -Ordi- nance adopted, 3/2. It was moved by Neuhauser and seconded by Davidsen that this zoning be considered by the Planning and Zoning Commission for a_less restrictive use-.7.Motion ''carried " 4/1, -Brandt Voting "no". It was moved by Davidsen and seconded a u by seconded that the letter from Bruce Glasgow, President of Plum Grove Acres, objecting to the CO Zone -be received and filed. Motion carried, unanimously. _Mayor Czarnecki called attention to the letter from Plil_ Bert Frantz a=kin¢ for def rral 4f action on -their rezoning ; reauesr ,n Mount Prospect Addition`. Part 3, from RIAto RIB -and R2 zone. It was moved by deProsse and=seconded by Brandt that the request -be deferred indefinitely. Michael Martin appeared for discussion. Roll call on the motion, 'Brandt voting "aye", Czarnecki deProsse and Neuhauser voting "no", Davidsen not voting. Czarnecki, n-not adopted, 1/3. After further discussion, it was moved by Davidsen and seconded -by _Brandt-that`the pre vious motion to defer the rezoning as requested. Robert`R'elsh` -appeared for discussion.Roll call on the motion, Czarnecki and Ne.uhauser;voting "no", Brandt, Davidsen; and deProsse vot- ing "aye". - Motion carried,3/2`. It was moved by Brandt and seconded by;Neuhauser to adopt -- Resolution 75-383,: recorded in Resolution Book, 33, page- 114, ; Accepting the Work on the'1975'Asphalt Resurfacing Program done by L. L. Pelling Construction . Roll call: ,Ayes: Davidsen, derrosse, Neuhauser, Brandt, Czarnecki. Nays: none. .P.e>o- lution`adopted,'S/0. • Activities of Council Page 4 October 28,'1975 It was moved by Brandt and seconded by Davidson to adopt.,. Resolution 75-384, recorded-in'Resolution Book 33, page 115, A rovin the Contract and Bond for Bob Mad et Inc. for U.R.-R14S Demolition and Site Clearance`Pro'ect. 5 Roll.call: Ayes: eprosse, Neuhauser, Brandt, DavidsonCzarnecki. Nays: None:, i Resolution adopted, 5/0:' It was moved by Davidsen and seconded by Neuhauser to adopt the following resolutions recorded in Resolution Book 33: (1) Establishin Loadin Zone on the Side of i4ashin to n Street Commencin ata oint-30 get East o Clinton Street, E p F Eas f Cl nton'Street for a Period of 15 Minutes (Res. No. 75-385,'page 116), (2)_Establish- ,nv Loading Zone on the `N *� c,aA of wa�hin2ton Street om encin7 at a Point 120 Feet hast of uPeriod Ot uuuvua °*root Extending, to a Point 270 Feet East of Dubuque Street3for Establishing 15 18) Minutes, (Res. No. :75-386, page _117), ( ) One-Wa Eastbound Traffic in th Eas -West Al le=ad'acent to , Chauncey Swan Plaza (Res 75-387 page 1deProsse11 Nays: no Neuhauser, Brandt Czarnecki,-_Davidsen, Resolutions adopted, 5/0. It was moved by Brandt and seconded by deProsse to adopt41, Resolution 75-388, recorded in RCsolutioonj Book 33, pages 119;-123, _ 9acatine Blane-Roc`Addition.,located within the ':same area-con-1 templated-for the University Lake Anartment building. Roll' arnecki, Davidsen, deProsse, Neuhauser. call: Ayes: Brandt, Cz <Nays: 'none: Resolution adopted, 5/0. It was moved by Neuhauser and seconded by,Davidsen that Resolution 75-389, recorded in Resolution=,Book 33, pages 124- 125, A rovin the Revised Combined Preliminar and Final Lar e 1 R s' ential Develo ment"Plan'of Universit Lake A artments — be adopted'. Roll call: Ayes: Davidsen,'Neuhauesolution adoptedser, Brandt. Nays: Czarnecki. Abstain: deProsse. R 3 3/0/1. Councilwoman deProsse asked that the reason for u, 3/0/1.tion_be recorded: She stated that she had found this ost confusing she e mhad encountered while-onrthe Council issuethe ` and the ted'the fact that she had not had time to addresssher- self-to'it, so did not feel comfortable in making a vote she would-be unable to defend. Council ddisccussedoPlanning andshaZonn ing's recommendation that the City pay pro P P the cost Of the -6' public -bicycle path and walkway (9125 lineal noted feet, the City share would be $2,400). __- Y that as Council had passed the resolution, the Staff -would then - feel that the Council was in favor of the bikepath, and would take action 'necessary ',to provide appropriate funding.< Page 5 Activities of Council October 28,'1975 It was moved by Neuhauser and seconded by Davidsen to adopt Resolution 75-390, recorded page 126'A rovin the PreliminarinPRaooftBusiness Develo ment Inc. 1st A di tion. Dennis Kraft, Director of Community Development, explained that Planning and Zoning Commission_ had approved Opt the Preliminary Plat with the :stipulation that the; two options of providing sanitary ewer service on hat. on the plat; and apown proved Ppr°ved the ;f in al plat with'the following (a) all legal documents be submitted includ- ing a satisfactory legal document relative to liens and en- cumbrances of the subject property; and'(b) an agreement en- instituted concerning be and and cost of sanitary sewer, system. The previous motion was withdrawn. It was moved by Brandt and seconded by deProsse to adont`Resolution 75-390, Approving the Preliminary Plat for BDI 1st Addition - as .recorded in Resolution Book 33, page `126 and Resolution No. - 07 APUiOyino tha r:..,., ... ' as recorded n olu i Res page 392, subject to written agreements prepared 1by on thekCit' Attorney concerning sanitary sewer and removal-of liens on title. Upon roll call`Davidsen, deProsse, liens Czar- necki voted "aye". Resolutions adppted,'S/0. Director of Community Development Dennis Kraft explained the Planning and Zoning Recommendation "of"approval of the'Large Scale Non-Residential -Develo ment"Plan for -.the Na le Tfini-R'are- ouses subject,to,an agreement mutually._acceptable by the City �S an Business Development , Inca, sewers, when needed, ssethe costfor of BDItorlfutureation opropertyrowne It was moved by `deProsse and seconded by Neuhauser to adopt ' Resolution No. 75-392, q I, �g houses subject to the :agreement eomrt7eneb`!i le Mini-Ware- ,1.7, .-,ren ..t Zoning, as recorded in Resolution-Book 33 Y ae 12.n ng and Ayes:' David sen deProsse, Neuhauser, Brandta-Czarnecki�llNays1 none. Resolution adop"ted:S/0. It was, moved by Neuhauser and seconded'by deProsse.to adopt Resolution No. 75-393,- recorded 'in Resolution Book 33 of Intentnotto=File=Environmental'Im act Statements�fpage or ero29iects ' muni.tyuDeyeloDment�A,,%,, 19�4T1tRo11'callhe dePu os Neu- adopted, _ hauser, Brandt, Czarnecki, Davidsen. Nays: adopted, S/0. Y none: Resolution - It was moved by,Neuhauser and seconded by Brandt to adopt Resolution No. 75-394, recorded in Resolution-Book,33 of 1, ,Re uestin Release of `Funds for Proiects under pages I of the Housin and CommunitX Development Act 114 Roll -Roll �9i% call: _Ayes: Brandt, Czarnecki,-Davidsen, deProsse, Neuhauser: / Nays: none. Resolution adopted, S/0. Page,6 en and seconded by Brandt to adopt led in Resolution Book 33,:page 132, e Permit for King's Food Host, 1401 Aves: Brandt, -Czarnec i, Davidsen, r- •- AGENDA REGULAR COUNCIL MEETING October 28, 1975 7:30 PM - Item No. 1 - MEETING TO ORDER ROLL CALL- A I I ,res e v t- Item No. 2 - READING OF MINUTES OF OFFICIAL ACTIONS OF COUNCIL MEETING OF OCTOBER 14, 1975. �i D s db j Co-rI'�c..Ic r Item No. 3 = PUBLIC DISCUSSION At Yto/ns--c.,. �Nv� I�nJsr�nl'n .n nyoce<�fQ � - C' mr{-n.. t ..�,:. U c .,1 r r .` Iwa•�+ p_n e�� .... - e �:-y...: / �'o rw ..v v / 1t.!! l/t`•l/in-Y_aoir�-•-it".(_t /aV-n.•%r'� _. o -,P, IJ'X l__.�w ! lY' � �.J'c 1 to *, • - /, .�.� �.. .' .'i", nu � ...�. - Item No. 4 - RECEIVE MINUTES OF BOARDS AND COMMISSIONS. a. Iowa City Riverfront Commission meeting of October 16, 1975. r Action: v b. Iowa City Park and Recreation Commission meeting of October; 8, 1975. Action: - - Item No. 5 - RECOMMENDATIONS TO THE CITY_ COUNCIL. a. Consider recommendations by the Iowa City parks and Recreation Commission. 1. That the Park and Recreation Commission recommends that there be a free swim period 'during playday on Saturdays between • 10:30 and 11:00 a.m. Action: rf1nr 1 n �1 IU+ In' `'J/•"=!1 1 +Ct .c4Ctci _C,^fa_r�n 'CL.o, ,•q JJ --- �J!.t '.:. ` a- �:._.. v' z.. .-:c-��J ji: ,, \7P ! to D_!•--, _ ,.. , •.` r '�-%�� ::�. _` _Y,, r �.. � _ �-.. .. r`- _ r t`-•- � G'bt,c-. -... y?. :1. � -� ,';Zti•'l?f'� - (,-,�✓".�.r�:-t_ .'_.. - o_ r'' / C�.i+( :i C? IZG4%L.S.'.^i I i f r 1 � f r Agenda - Regular Council Meeting October 28, 1975 7:30 PM- Page .2 • CONSIDER SETTING PUBLIC HEARING TO TEMPORARILY VACATE MADISON Item No. 6 - STREET FROM IOWA TO WASHINGTON. Comment: et en The of Iowa aforsaeonehyearadison periodstoeallbvehicles�except and Washington be closed Washingtonbe c— The Planning and Zoning Commission buses and emerehicles. March 27, 1975, and their recommendations reviewed this matter on s sent 'A brief report from Public Works. was sent to Council are attached. on: October17. Action: l ( a < Jr + No. - MOTION TO APPROVE SITE PLANS FOR PLAZA -CENTRE -1. Item -;7 Action: Item No. 8 - BUSIN ESS FROM THE CITTY COUNCIL//. ' — • }f, • oma+ -� ^`t ant 9 -REPORT ON ITEMS FROM THE CITY MANAGER AND THE CITY ATTORNEY. Item No. financ'ial summary for the Department of: Finance - a. Motion to approve August. 25't, UR-- <L.Ge 'C for "July and b. Motion to approve additional -position of Senior Clerk -Typist in the additional Development reflect the Department of Communityelopment to `Housing Coordinator in the transfer in of responsibility of the housinginspectors,` and additional. housin inspector s,:additional housing • leased oousin /units. Ie .. . %i �1.P.�-[,.' 1 j..L N tl.:'.+�.Ga t•Fn vn Na, " o•v:. KO �e.irn'*a 'A (i r 11 I_ �-.I n,-.. :,,}�,p/ I-a�C Y'. 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' 1.1 if r Agenda Regular Council Meeting " •_ October 28 Page 4 1975 7:30 PM Item No. 12 - CONSIDER RESOLUTION ACCEPTING THE WORK ON THE FY; 75 ASPHALT RESURFACING PROGRAM. - ✓;` 3 = Comment: This resolution accepts-the-work-done by-L. L. Pelling-:Construction - Company for the FY 76 Asphalt Resurfacing-Program. The final contract amount on this project is $206,996.23 and the contractor has completed all work 'in`accordance with the plans and specifications. �i�� l 0 5{ Action: 1:�� / _ e .1r_vre_ D - Item No. 13 - CONSIDER RESOLUTION APPROVING THEcCONTRACT AND BOND-FOR BOB MADGET, 3 Y INC. FOR DEMOLITION AND SITE CLEARANCE PROJECT NO. S. Comment: This resolution approves the Mayor's signature on the contract and bond for the award of this contract. The award of, this contract was made by the City Council during their regular meeting of September - 30, 1975. Actions L J� , �2�' 0 �� a � v . 5/to Item No. 14 -`CONSIDERRESOLUTION ESTABLISHING LOADING ZONE ON`THE 'NORTH SIDE OF WASHINGTON STREET COMMENCING-AT A POINT 30 FEET -EAST 'OF CLINTON -55 STREET EXTENDING TO-A POINT 145 FEET EAST OF CLINTON STREET FOR A PERIOD OF 15 MINUTES. eiL)a / comment:; This.area was designed as a loading zone and signs will need to be i erectedto put loading zone regulations into use. Signs will be temporarily installed-until-permanent signing is installed next spring. Action.,.. Item No. 15 - CONSIDER RESOLUTION ESTABLISHING LOADING-ZONE ON THE NORTH SIDE OF WASHINGTON STREET COMMENCING AT A POINT 120 FEET EAST OF DUBUQUE> j P=_/STREET _EXTENDING ,TO A POINT 270 FEET EAST OF DUBUQUE STREET FOR A PERIOD OF 15 MINUTES. Si'•,(a,�_Cf. - Comment: This area was designed as a loading zone and signs will need to be { \\ erected to put loading zone regulations into use. Signs,will be temporarily installed until permanent signing is installed next spring. Action:, /VJ - / � . F,' � j / r ': / ., Jam• v � 1 J -77 l _ _ MINUTES OF OFFICIAL: ACTIONS OF COUNCIL OCTOBER 1410 1975 -7:i0 _P_,M n the dings nd The cost of publishCumulativelcostntoPdateeduringathis claims is $ $ calendar year or said, publication is The Iowa City City Council met in Regular Session on the in, the Council, 14th day of`october, 1975 at 7:30 P.M., Brandt,;Czarnecki, ` Chambers at`- the .Civic _Center. -Present: Mayor-Davidsen,:deProsse, Neuhauser. Absent: none. Czarnecki presiding. It was moved by deProsse and seconded by Neuhauser to a and full reading r consider the amount read thus 'far to be of the Official Actions of Council to--approve.the minutes September 30, 1975,` subject to correction. `Motion meeting of carried, unanimously. It was`moved'by Neuhauser and seconded by Davidsen that i'ssion, 9/17/75 the minutes of ;the meetings of the-Housing-Comm 9/8/75, be: received and filed. and Human Relations -Commission, Motion carried, unanimously. Public hearing was held on rezoning. of FraPt ass andeast By-pass • Company property located south of Highway.6 R1B and R2 Zone.. Planning and of Sycamore Street from. -RIA to recommendation was contingent on a stipu- lots an Zoning ,Commission lation that vided r the.tract not Sfor1Mount'ProspecteAddition :shown -on fhe perliminary p latbe `3. -,moved by Neuhauser and ,seconded ;by Davidsen part It was that the petition from residents objecting to the rezoning unanimously. to R2 be received and filed. Motion carried closed. It was moved by Brandt The Mayor declared-the`'hearing to defer first 'consideration, 'of the and 'second ed_ by Neuhauser ''-to October 28th; as Councilman -Brandt will be absent because Ordinance October 21st'and a-75� Council vote will•be'needed on of the petition. Council disucssed the memo from City Clerk Abter Stolfus After'dis- regarding purchase of Voter Registration -List. seconded by Neuhauser to cussion, it was`moved,by Brandt and the City. for,report;next week. refer the:memo.to .Attorney _Davidsen and,deProsse voting 'no'. Motion.-carried,`3/2, After, discussion, it was moved by Brandt and seconded that Ordinances .must be by.deProsse that the rule requiring at two Council considered and voted "on for passage, assedmeetinbe it -is to be finally p prior to the meeting at which the first and second consideration and vote: suspended; that L' 8 3 Official Actions of Council Page october' 14 -1975 . It was moved by Brandt and seconded'by;Neuhauser to in book; adopt the following permit resolutions'recorded 33: Approving Cigarette -Permit for Hamer Alignment, 1021 108 <South;Gilbert Ct. Res. No. 75-377, page Approving Class C Beer Permit Application for Conti- 105 E. Burlington, nental'oil Co. dba/Downt09wn Conoco, Res. No. 75-378, page Roll ,call: Ayes: Brandt, Czarnecki, Davi deProsse, adopted, 5/0. Neuhauser. Nays: none.' Resolutions It was moved by Brandt and seconded by deProsse to negotiations adjourn to Executive Session to discuss contract Roll call on -.the motion. with` -Old -Capitol Associates. andt.' Czarnecki,:Davidsen, deErosse, Neuhauser,,-Br P.M. Ayes: Motion carried, -.unanimously. -Meeting adjourned 9:30 A more detailed and complete description of';activities Clerk's of Council and disbursements available in City Office and Department of Finance. Mayor ity er �' _ L tt Activities of Council Page 2 October•14, 1975 =: :. Manager ad- thetotheMayor's question, answer was Rea , " viscd`-that;-of-Human_,"City Candy-Morgan,"Director and Management Workshopht he League of attending the Labor Municipalities meeting. He also claborated on the purpose The budget wi11'not iµ of the Thursday informal meeting session. October 30th session,with Pat Strabala. be started until the J. Councilwoman Neuhauser advised that she had attended Corridor the presentation of Phase Two of the Iowa ,River called attention Study at the Riverfront;commission. ,She -to-=the - :for property owners 'on Linn; -Street regarding problem replacement`of utility ,lines by Iowa -._Illinois Gas-and.Electric Company. The City Manager advised he would investigate. Councilman Brandt posed several questions: (1) concern- Street, tioning ing,traffic'signalization on Burlington ques suggested that- the_City if allare pedestrian_actuated'_and ought to have a left turn signal.on :Capitol off -Burlington, that with the traffic going -east- The City Manager advised should.be'and he' Capitol/Burlington signal�is operating as:it signal, (2);the `condition of would.investigate'a left turn Highland Avenue from Keokuk east to'Sycamore Street, _(3) if City the refuse containers have been installed.downtown - have purchased, Manager Berlin replied n o containers_; -been (4) the amenities contract for ;Washington Street and when to • be completed --City Manager Berlin replied the Design'Review final, Committee; met and did :some preliminary.work,on;the lights will be installed on Washington Street, (5) when the horn problem, (7) status' (6) what is the status'of Maiden Lane train,. east of of. open drainage_ditch'on First Avenue on the :side SAMA delivered HUD on Goodwill,-(8) the status of the _to for the Elderly. -- Berlin noted we do not know ,when Housing they'will.make the decision,.(9) the -transfer of property have been com- ' on 'First Avenue -- Hayek explained abstracts to resolve problem.with:surveys; that plete,d and ,are trying they'do not coincide with Sycamore Investors surveys, and 10) Airport monies and transfer, of land, -- Hayek will port next week. 'Council discussed the memo from City Clerk AbbieiStolfus List. :After_dis- regarding purchase of Voter Registration moved byBrandt and seconded by Neuhauser to __--cussion.it_was the memo to'the`City Attorney„for-report next week. "no.” refer Motion carried, 3/2, Davidsen-and deProsse voting City Manager Berlin requested an executive session after_ He also the meeting to discuss'Urban;Renewal negotiations. Housing and'Community.,.Development Steering called attention to the Committee meeting to initiate the process -of the Steering e ' � Page 4 Activities ofCouncil,•- October 14, 1975- It was moved by Brandt and seconded by deProsse that the petition .from Mr, and Mrs. Thomas Doling,:'112O Spruce Street, regarding: the drainage ditch whichtborders-property on Spruce behind Iowa -Illinois Gas Comparly'.be received --and. filed and referred totheCity Manager for report, Motion.'..; carried, unanimously--- nanimously It It was moved by Brandt and seconded by-,Neuhauser-that the letter from Della Grizel,;1530 Sheridan Avenue,regarding- the congregate meals for Johnson County be received and filed. Motion carried, unanimously. It was moved by Brandt and seconded by Neuhauser to adopt the following permit -resolutions recorded -in Resolution Book 33: - - - Approving Cigarette Permit for Hamer Alignment, 1021 South Gilbert Court, Resolution No. 75-377,;, page 108 Approving Class C'Beer Permit Application for Conti - nental`Oil Co. dba/Downtown Conoco; 105 E. Burlington Resolution No. 75-378, page 109. . Roll 'call: Ayes: Brandt, Czarnecki; Davidsen,_deProsse- Neuhauser, 'Nays:'- none. Resolutions adopted, ,5/0, It was moved by Brandt and seconded by deProsse that the`. disbursements in. -the amount of $860,468.08':be,.approved;subject'. --Motion to audit. carried, unanimously, It was moved by Brandt and seconded by deProsse to ad- journ to Executive Session to- discuss contract negotiations with Old Capitol ;Associates. Pat Foster,.,Council,Candidate, appeared, requesting Council a.'resolution to suspend all negotiations with Old Capitol until: -after -the first of 1976,- noting 'the 'new councilmembers may have,different=:ideas on the issues. John Gordon was also;., present for discussion'. Councilpersons;opposed to the request were: Brandt, Czarnecki, and Davidsen,--Roll call' -on the motion to'adjourn-to'executive session: ;Ayes:- Czarnecki, `Davidsen, deProsse, Neuhauser-, ` Brandt. Motion carried, unanimously.: -Meeting adjourned, 9:30 P.M. - Mayor City- Clerk s Minutes Page 2 October 8, 1975 Women Voters concerning the relationship of t he Staff and the Commissions. dedication at_the He reported that he had also attended the scoreboard Recreation Center pool in September.` that Robin Powell had been officially reappointed Cilek then announced Park and Recreation Commission by the School Board.- to the had accompanied Showalter to look over possi- He also indica ted that he bilities for land acquisition. Showalter then requested that Commission review the_C.I.P.-Report written the C.L P. at the by Gene Chubb in order to prepare for discussion of November meeting. indicated that he had been contacted by Mr. .Jacobsen from Marx IV Coralville schools He regarding ASERP. The children who live at MRP _ark IV, attend feels that ASghould articipate in and, -therefore, don't have access to be ablebtonp these children live in Iowa city, requested by Commission to check an the availability ASERP. Showalter was in Coralville schools and to look into the possi- of similar programming Mark IV children in ASERP. bilities ofincluding Showalter reported that Marianne Powell had surveyed 200 people regarding to the with 90% of those public, the evening opening of the City High gym It was pointed out by Staff and interviewed in favor of the proposal. be a conflict with school sports various Commission members that there would an variousinvestigate the possibility of ,opening an activities. Staff was asked to gym to the piblic.in the evening. _ elementary or junior highschool 10 they had both received approximately Showalter and Cilek reported that -School District pool facilities. City - letters regarding Joint completed with He also announced that the lower City Park road project was - be done by the Park crew. the exceptionofgrading of the shoulders to $22,724.00. The cost of the project was Staff indicated that they would like to start a free swim The Recreation 11:00 a. m• durDavishmuY�ny 10:30 to secondedthat period from ovedanditwas * activities. Following discussion, swim mreeUnanimous. a the Park and RplaedaiOonCSaturdays betweenn10:30tande11:00 period during Y, Y fee situation, Staff.indicated that Jean Spector will Regarding the ASERP the current semester of activities make -a report at the end of that Commission would like to receive Staff's There was a concensus Monthly Reports. the Park__SuperinCendent,_Selection Committee, Showalter announced 9, and four would Regarding interview would be held on Thursday, October that one beheld on Saturday, October I1. g _.. _Minutes - - - Page 3 October 8, 1975 Betsy Hillman made a presentation to Commission regarding the purchase letter and map).' of land as an addition to Hickory Hill Park (see attached - Nancy Seiberling was present to discuss Project GREEN describing it as a group of people who care about the city. She noted the group's.projects Street, wn at Iowa Avenue,"Highway 6, Melrose Avenue, Gilbert cte Mrs. Seiberling also indiad mini-parks,_and Chauncey Swan Plaza. `open being set aside for protection Project GREEN's concern with space and conservation. Mrs. Seiberling explained that Project GREEN provides the planning and of the pro— materials for its projects an d: contributes to the maintenance the projects becomes the jects for two years: Then, the maintenance of Seiberling expressed a desire for responsibility of the City._ Mrs. operations on those projects for which the improvement of maintenance City is now responsible. =; She indicated that Project GRE EN had chosen the Washington' Street plantings GREEN would ' also indicated that Project as its rBicentennial _Project. She Showalter; to work with the Director of Parks and Recreation, Dennis that they would like provide the necessaryreplacefor trees and to maintain the planting plana. Kelley_ reported on the activities of the Zoo Subcommittee, indicating that d Joseph Frankel he and Mascher had met with Dick Lane, Jeanne Connell, an that questionsoE to discuss the zoo situation. Frankel suggested,serious future acquisition, temporary or permanent, should be raised about the also suggested that Staff should consult with ?, exotic animals. it was the University ofIowa in order to prevent three or four ecologists at future problems. With-regard_to the leopard situation, it was reported that the cages had bagel inside. each been enlarged to the equivalent of two full-sized in front of the cages was - Platforms _were also established and the fence - raised to four feet in height. Commission discussed a letter from Antonia Russo, Animal Protection League out what he - of Johnson County, regarding the zoo. Buzz Mottet pointed It Ms.Russo felt were several misconceptions in the letter. was bsuggested advisory y erning that a permanent subcommittee be set up as._an _ - Commission that Staff zoo. Following discussion, there was a con ZOO. investigating the zoo situation rather should have the responsibility of was moved by Powell and seconded, by * than a permanent subcommittee. It then Commission recommend that the Director Kelley, that the Park and Recreation investigation of the Iowa City Zoo and of Parks and Recreation conduct an and long term -'needs report back evaluate the zoo as to its short term -and to the Commission in due course. Unanimous. At that time, Mr. Showalter thanked Mrs. Hillman for her report on acquiring with the additional land for Hickory Hill and indicated that the park, expansion. With exception of the Irish property, was bought for cemetery Minutes Page 4 October 8, 1975 --regard to the, Shay property,_ which is approximately 160' x 155'_-, the cost of the property was estimated by Showalter to be approximately $6,000.00. He also reported that the City will purchase the Solnar property for $1,700.00 plus the $75.00:abstract :fee. * It was.then moved by Stockman and seconded by 'Davis that the Park and 'I Recreation Commission defer consideration on the purchase .of the Shay property at this time. Unanimous. ._ - Commission discussed swimming pools and the-requests for a; joint City- School facility, with Mascher commenting that perhaps the School District should-have the responsibility of providing another pool. It was pointed'' out 'that `there was a: possibility that theCity and the School District could construct a joint facility under HUD guidelines. Kelley left the meeting at 10:25 p.m. - -----TerryEdmonds and Jerry Best -were -:present ':todiscuss the Aerohawks, a 'model airplane club with 35 members, who are trying to find a place to fly their-planes. They presented a proposal for use of part of the West Landfill (see attached map) for this purpose. Powell requested that Staff * investigate the insurance situation. It was then moved and seconded that - the Park and Recreation Commission recommend approval of the concept __proposed by the Aerohawks with the proviso--that there will be satisfactory resolution of the liability question. Unanimous. - Joan Buxton was present to discuss lane ropes and record boards for the - Recreation Center pool. Further discussion was deferred until the November - meeting. Showalter discussed the log cabins in City Park which were built in 1899 ' and asked Commission's feelings about whether they should be renovated and preserved or,torn down. There was 'a concensus that Staff should get - community input before a decision was made. Staff discussed the 'diamonds °at Happy Hollow and Mercer Parks, suggesting that the Happy Hollow diamond be moved (see attached map) and that the fence at Mercer be moved just inside of the lights.-: There was a concensus that Staff, should get input from men's and women's softball representatives through Commission's Baseball and Softball_ Subcommittee,Sangster and -- Mascher. Mascher requested that a substitute be designated, to attend the Riverfront- Commission meetings untilJanuarybecause she has `a'conflict. Flo Stockman will attend in place of Mascher. -' - ' --There being no further business, the meeting was adjourned at 11:10 p.m. AEROHAWKS , IOWA . Contro ed Model Aircraft Club Radio Proposed Aerona:�k Flying yield I \O Road O 20 - Landing St -Iii: _ ' .-lover Fiela. Final grade for entire field m ' , S.ceczator Area -:- 4elecaune Lire -, 9 u U - 7C Land Fill . Entrance vale -- :c v G4 - . - - E t ' closing and that the City Council will reserve the right to reverse this action at any time such reversal is deemed necessary in the best interests of the City. ; REQUESTS TO -THE CITY MANAGER FOR INFORMATION OR STAFF -ASSISTANCE:. None LIST OF MATTERS PENDING COMMISSION -COUNCIL DISPOSITION: 1. 72-04.Board of Adjustment Appeal Amendments. 2. P-7317. Creation of a University Zone (U). ' `3. P-7410.. Creation of,a Mobile Home Residence Zone'(RMH).> 4. C-7405. .Objections to:prohibited and non -conforming signs. Council referral:. --11/6/74.- 5. V-7501. Possible vacation of Lafayette Street between Gilbert and Dubuque ;Streets and/or abandonment -of -bridge.. • Council' referral: :1/10/75. SUMMARY OF DISCUSSION AND FORMAL ACTIONS TAKEN: �> Chairman Ogesen called the meeting to order and asked if there were any corrections or: additions to:the'minutes of the February =; { - 27, 1975 meeting.. ,A motion was -made byMr. Horner and seconded by Ms. -Cain -to approve;.the'February.27,-1975 minutes as written. ' - The motion carried_ unanimously.;. 'A motion' was made- by Mr., Horner-- . ' - and seconded, by Ms. Cain to approve the _March_;13,_1975 minutes ' as written.' The motion carried unanimously'.` -= ' f. P-7501.- Regulations for parking and storage'of recreational and commercial vehicles., Initiated by P&Z:"_. -'_ Chairman Ogesen briefly summarized the provisions`of the ordinances -to amendthe-Municipal Code by -the establishment- stablishment of of Sections 6.16.11 and 8.10.25H. _ After a brief discussion,'a motion -was made,`by Mr. Galiher and seconded by Mr. Horner to, recommend _to -the City Council _ approval of ;the proposed ordinance to,amend.the;,Municipal Code by the establishment of a Section 6.16.11 with the following` revision in Subsection B: 1 "Motor vehicles of any type that exceed 7 feet in .height or -8 feet in width or 20 feet in length shall not be parked on any street in a residential zone except for a Ordinance No. 75-2787 Page 2 MAYOR It was moved by Brandt and seconded by ` ^ Davidsen that the rule requiring the Ordi- /1 nance to be considered and voted onfor AT EST:' CITY CLER passage at two Council meetings prior to:1 the meeting at which it is to be-finally passed be: suspended,and first and-second - consideration and.vote'be waived, aril that the ordinance be voted upon for final passage .': V at this time. Rall Call:Ayes: Brandt, Czarnecki Davidsen, deProsse, Neuhauser. Notion adapted ;:, 5/0. C Date of Publication ry -2- 5. P-7403. Revision of M1 and M2 Zones. SUh91ARY OF DISCUSSION AND FORMAL ACTIONS TAKEN: Chairman Ogesen called .the meeting to order and asked -if there were .any corrections or additions - to the minutes of the Cain toting ld on approvettherminutes 1975.A motion `was made`by Hines and_secoy, 6b_Oy as written. The motion carried unanimously, P-7317. Creation of University Zone (U). Initiated by P$Z• -to- recommend was made by Blum, seconded byCode of the _Hines, e ofthe City the City Council of Iowa City, approval of the ordinance to amend the Zoning 'Iowa, by creating a new "U" University Zone. " that the proposed ordinance, which has been pending Commissioner Blum explained - would place land owned by the State of Iowa for for approximately one year, - the University of Iowa within a more appropriate Ione than R1A as most of he orinance of t such 'land is presently zoned. He stated -that hthexist toelandownersdadjacent would _be_to-remove any.prohibitions,which might mcg to the;U:Zone. CommissionersBlumoalso owanrepresentatives requdicated-that at the estedethat st informal P4Z meeting, provide action action on the proposed ordinance be delayed until the University could additional input. Commissioner Hines suggested that deferral of any would seem appropriate. al Chairman Ogesen ruled that a motion for deferrwouId take precedence over she earlier motion to recommend approval. ction the en A motion was ordimadenance Hines, se "U" UniversitysZonetuntileDecember 4T, 1975,' Prop with an invitation to University representatives or others to present alternative proposals or another ordinance. nvolved, he would Comm issioner Blum sio deferral. Commissionerof the tMadsen hnoted that theUniversity have no objections has previously had an opportunity to provide input. The motion for deferral carried unanimously, 6-0• ts 5-7521. Revision of preliminary and final plat of University Lake Apartmen. Revision requested by developer: 10/21/75 nd inal Chairman Ogesen explained that the subject combined prplrovedrbyathe fCommcssion LSRD_plan is a.revision of the preliminary Lro0edlby the Commission on ,October on ,September 9,`1975, and the final plan app plat was to on Sept er stated that the primary reason for revision of the p save some trees. - -A motion was made by Hines, seconded by Cain, to recommend to the City Council approval of S-7521, revision of the preliminary and final plat of University Lake Apartments, with the recommendation that: (1) a six-foot bicycle path and/or walk beprovidedpartially at City expense; -and (2) the City Council seekadvice` from the Engineering Division concerning snow removal in the subject area. ` The motion carried unanimously, 6-0. -- ------ ------------- Commissioner Cain suggested that the following be included as,a discussion item at the next informal Planning and Zoning Commission meeting, November 4, 1975: Consideration of an amendment to Chapter 9.51 of .the City Code which would allow minor modifications of LSRD plans to be made without "resubmittal of the plans for approval: by the PF,Z Commission and the City Council S-7522. B.D.I. First -Addition, -,preliminary plat (vic. corner of Highway 6 Bypass and Heinz Road). Submitted by Business Development, Inc. -- Iowa City Chamber of Commerce. Date filed: 10/21/75. 45 -day limitation: 12/5/75. Mr. Jim Shive, engineer, stated that the following two options were available for providing sanitary sewer service to Lot 1: (1) tie on to the sanitary sewer lines of the H. P. Smith Paper _Company -to the -west, or (2) connect -to the sewer lines between -Lots 3 and 4 to the east. He.stated that an easement had_, been provided ifoptionN2 was chosen (connect to the sewer lines between Lots 3 and 4). Don Schmeiser, Senior Planner,'suggested that both ,options should be shown on the preliminary plat. A.motion was made by Madsen, seconded by Cain, to recommend to the City Council approval of 5-7522, B.D.I. First Addition, preliminary plat, with the stipulation that the following two options of providing` sanitary sewer service be shown on the preliminary plat: (1) tie on to the sanitary sewer lines of the H. P. Smith Paper Company to the west, or (2) connect to the sewer lines between _Lots 3_and -4 to the east. The motion carried unanimously, 6_0 S -7522A. B.D.I. First Addition, final -plat. - Mr. Schmeiser explained that there was some question as to whether or not - the. City Council-could`legally'approve the subject request without a statement from an attorney stating that the, property is free of.liens and encumbrances. He also stated that the Staff's recommendation.was:to`require that an agree- ment mutually, acceptable to the ;City,and the ,applicant providing for the installation of sanitary sewers when -they are needed `be -submitted in lieu of the standard provisions for the installation of sanitary sewers. Since B.D.I.; anon -profit organization, -sells land on the condition that the purchaser shall meet all requirements necessary for the issuance of a building permit, ermit the cost of the sanitary-sewercould-.be passed on to the lotpurchaser.. by the agreement. -4 - to to recommend_to the City Blum, seconded by final plat, with the A -motion was made by g D I , First Addition, Council approval of 5-7522A, contingencies: (1) a satisfactory - legal document be submitted and relative to liens' and encumbrances of the ubject property, (2) an agreement be instituted concerning installation and cost - of a sanitary sewer `system. The motion carried unanimously, 6-0. Council should be thoroughly counseled al Staff relative to the property liens of B.D.I. Commissioners noted that the City by the City's Leg e Scale Non -Residential De45 delopmearay limitation• S-7523. _Nagle Mini-WGeorarehoes Nag leg Date filed: 10/21/75. (LSNRD) submitted by g 12/5/75. for putting rading plan had Mr: Shive stated that the owner was aware of -his responsibility laced. in curbs to provide for adequate drainage but because the g not yet been completed, he was not certain where the curbs would be p oner is A lack of sanitary sewer service was of afetianeedsCerHetfelt somelassurance Madsen because of personal hygiene and safetysewer,system. Mr. Shive stated rovide a sanitary, provided for warehouses, should-be-made-that-would hould be made -that would require such `a system:to be p _ that the City does not req but stated that they have provided for the location -that would accommodate a sanitary sewer system when and if .it is required. make a recommendation Commissioners noted that the stem regardless of whether or not itisa PRz Commission may regarding a sanitary sewer sy requirement of the City Code• proposed that she felt there had not been adequate time to review tatisf c Stating and f.inal.plat,_Commissioner Caineand warnedsed against LSNRD preliminary such procedures. 'Commissioner - Of with the haste involved in consideration such plat give a poor impression setting a precedent because of following would g ranting a - Madsen concurred and stated that heroeosalton the basis of g to rush into consideration of the p P personal favor. only on that portion of the Mr. Shive urged the Commission ha take act' that ifCompelled to obtain a' submitted LSNRD plat that,was shaded. he-would�be Compe the owner-wants the future, with all City Code requirements. to add another band, therefore, comply building permit and, seconded by Cain, to defer action on 5-7523, Madsen, Development (LSNRD) A motion was made by a Scale Non -Residential ndrep Nagle Mini-WarehouseNLargeagle, until -a staff an and report could be made. submitted by Georg Mr. Shive indicated that he was aware thee -developer had not followed the usual time requirements for submittal and subsequent consideration O` the _ _ - -- -- I 21 • S . • t ordinance No. Page 2 chant• Northwesterly 140.•51 feet •lOng -a-.2,715. 14" radius curve concave southwesterly, said line being the southerly fright-of-way line of u. S:- Highway #6'eypass to`a;point; thence North 88' 26' 29" West 688.28 feet along said southerly tight-of-►fay line of U.S. Highway 06 Bypass to'a point; thence North 3°`20' 24" East 110.00 feet along said southerly right-of-way line of U.S. Highway &6 Bypass too point; thence westerly 183.75 feet along a 2,715 foot radius curve concave southerly, said line being the southerly right-of-way line of U.S. Highway #6 Bypass to a point; - thence South 89' 27' 44" West 229.51 feet along saidsoutherly right-of-way-line of U.S. Highway #6 Bypass to point, of - - beginning: and containinq 13.3 acres more or less.. '. From _R11, Zone to 11113 Zone: Coernencing as a, point of reference at the Northeast corner of the-Northwest quarter of Section 23, Township 79 North, . Range 6 West of the Fifth Principal Meridian, -Iowa-,-Ci ty, Johnson County, Iowa; thence-South 139' 10" East 375.40 feet 'toe point of inter- section with centerline Station 222+12.6 of U.S: Highway 46 ' Bypass; thence South 0° 01' 03" East 150.00 feet to a point; thence Norah 890 27' 44" East 50.00 feet to the point of intersection with the easterly right-of-way line of Sycamore Street, said point being;'150.00•feet normally distant from the centerline of said U.S. Highway #6 Bypass; > thence South 0" 01''03" East 403.07 feet along the easterly - right=of-way line of said ;Sycamore Street to a,point;' ?; thence South 89° 58' 57" West 15.00 feet alono said easterly -- right-of-way line of Sycamore Street to a point; thence South 0' 01' 03 East 246.93 feet along said easterly right-of-way line of Sycamore Street to a point; thence North 890 58' 57' East 200.00 feet to point of begin- `n;ng,of tract herein described; thence continuing North 89" 56'_57'l-East 170.00 feet to'a • point; thence North 79'-59' 00".East 170.00 feet. to • point; Ordinance No. Page-4- age-4_It Itwas moved by and seconded by that the Ordinance be adopted ■nd upon roll call there were: -- AYES:. NAYS: ABSENT: Passed and approved this day Of 19 MAYOR ATTEST: CITY CLERK First Consideration -Vote for. passage: Second Consideration Vote for passage: - Date of Publication Iz , CONTRACTOR'S BOND KNOW ALL MEN BY THESE PRESENTS: That we, Bob Mad et Inc. of 2425 South 6th St. Joseph, M064 03 as (name of contractor principal, and The Western Casualty and Surety Company as name of corporate surety) surety are held and firmly bound unto the City of""'Iowa `City, Iowa, and to all persons who may be injured by any breach of,_Any of the conditions of this bond in the penal sum of Fifty-sevenThousand, Nine undred Fifty and Zero Hundredths------ Dollars ($57;958.00 ),_lawful money of the United States for the paymentof which sum ? well"and truly to be made, we bind ourselves, our heirs, :legal representatives and assigns, jointly and severally, firmly by ,these presents. i The conditions of the above obligations are such that where the said Bob Madget, Inca name of contractor) i entered into a'contract with ,the sCity of Iowa City:` I owa, ;bearing the -date of ' .'r�'i�+• ria—' ,--197;_ wherein said -: BobMad et --Inc. l`m re c2'- 7S? rVf name=of contractor `undertakes and; agrees to demolish certain buildings and structures located upon --cer- tain real estate, and clear, fill and/or clean said real:estate as specified in said contract, and to faithfully perform "all 'the terms and requirements of said contract within ;the time therein specified in a good and workmanlike manner, and: :in accordance .413th the plans and specifications attached to said contract and made _a part thereof. It is expressly understood and agreed by the principal and surety in this bond that the following provisions are a part of this bond and.are binding upon said princi- pal and surety, to -wit: 1. "That principal and sureties on this bond hereby agree to pay all per- sons, firms or corporations having -contracts directly with the principal or with subcontractors, all just claims -due >them cfor labor performed or materials furnished, in the performance of the contract on account of which this bond is given; when the same are not satisfied out of the portion of the contract_price_which the public corporation is required to retain un- - til completion of the, public improvement, but the principal and sureties �- shall not -be -liable to said persons,- firms - or corporations unless the claims of said claimants against said portion of the contract;pr.ice shall have ' been established as provided by law." 2. "Every surety on this bond shall -be deemed and held, any contract to the contrary notwithstanding, to consent without` notice: „(A) -To any:extension of time to the contractor - in which to per- form the contract. " (B) To any change in the plans, specifications,"or contract, when such change does not involve an increase of more than twenty-five percent of the total contract price, and shall then be released only as to such excess increase. - -- -- PB-1- • {/.� ) J RESOLUTION NO. 75-389 RESOLUTION APPROVING PLAT -- pre_liminary& - WHEREAS, a final -plat of "University Lake Apartments"; a large scale residential .development as defined in Section 9.51.T(H) of the Municipal Code of the -city of Iowa City, Iowa, involving the following described real ; estate located in Iowa City, Johnson County, Iowa, and more particularly described as follows: Commencing at the North Quarter corner of Section 16, Township 79 North, Range 6 West of the Sth P.M.; thence North 87 degrees 52' 50" West 970.37 feet along the centerline of Melrose Avenue; thence South 1 degree 57' 43" East 662.71 feet along the West side of the NEa NEI NWJ of said Section 16 to the point of beginning; thence South 88 degrees 18' 58" East 606.83 feet to the Southwesterly right of way line of the Chicago, Rock Island -and, Pacific Railroad: thence South 44 degrees 55' 48" East 314.93 feet along said Railroad right of way line; thence South 50 degrees 51' 00" West 221-.97 feet to the North line of Lakewood Addition, an addi- tion to the city of Iowa City, lows: thence North 86` degrees -26' 0011 West 141.30 feet; thence South ---51 degrees 38' 00" West 75.00 feet; thence 'North 66 degrees 16' 00" West 71.00 feet; thence South 53degrees12' 00" West 98-80 feet; South 53 degrees 33' 00" West 168.28 feet; thence South 49 degrees 10' 00" West 98.60 feet; thence South 47 degrees 09' 00" West 66.10 feet to the Southwest corner of Lot i of said Lakewood Addition; thence North 87 degrees 26' 00" West 32.01 feet; .thence North 1 degree 57' 43" West 657.66 feet to the pointof beginning. Said tract containing 7.47 acres more or less. has beenfiledwith the City Clerk and approval thereof has been requested, and Final and Planning WHEREAS, said final plat has been submitted to the Iowa City and Zoning Commission which has recommended approval of the same, and preliminary and WHEREAS, said final plat has been found to be in accordance with f the State of _Iowa and ordinances of the City of the provisions of the laws o Iowa City, Iowa in relation thereto. - - NOW THEREFORE, be it resolved as follows: preliminary and 1. That the -i:C b'/E-GS<,crlbef: :S n� ;Plat {s hereby ."�,>>:�✓/-'��• .� r . y�� / _ i \'� • ��1a +, RESOLUTIOFJ No. 75-391 - RESOLUTION APPROVING PLAT WHEREAS, A PLAT OF B.D.I. FIRST ADDITION TO IOWA CITY,JOHNS014 COUNTY. IOWA, containing _.four -.:(4)-- lots, -has ,been filed -with the City Clerkand after = consideration_ the: same is found to be correct and in _accordance with the provisionsofthe laws of the State Of.:lowa,--and tileordinancesof the City.± of Iowa City, Iona, in relation to plats and additions to cities, NOW THERE- FORE _ BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY -OF IOWA CITY, IOWA, that the said plat and dedication of the said B.D.I. First Addition to Iowa City, -Johnson County, Iowa, be, and tile same is hereby acknowledged and approved on the part of the City of Iowa City, Iowa, and chat lhe,streets therein shown, be, and are hereby accepted, and the I-layor and the City Clerk are hereby directed to certify this r'esoluLion of; approval and affix the same to said plat as by Iar1 provided. Said approval subject totl) all legal documents being submitted including.a satisfactory legal documentrelativeto liens and encum- brancesof the subject property,andr2)n t , aagreement be institued concerning _ .. installation and_cost'of a sanitary`"sewer system.. Mayor. dgar Czarn cki It was moved by Brandt and ATTEST: "seconded by deProsse that the - — resolution as read be adopted. Roll call: IAyes: Nays: Absent: City Clerk Brandt x Abbie Stolfus Czarnecki x Davidsen x deProsse x _Passed this 28th day of October, 1975. Neuhauser X STATE OF IOWA ) ss _ JOHNS011 COUNTY ) - - - We Edgar Czarnecki, Mayor and Abbie Stolfus, City Clerk. of the City of Iowa -City, Iowa,.do-hereby certify that the above and foregoing -resolution is a. true and correct copyof -the resolution aspassed by Lhe'.Ci-ty Council of"the City of Iowa City, Iowa, on this day of (tJ a njuk-) A•D•, 1975' `G Mayo r Edga Czarn kJ w/IGC City Clerk Abbie Stolfus. EXHIBIT "A.. Commencing as a point of reference at the center of Section 24, Township - .79 North Range 6 West of the Fifth Principal. • Meridian, -Johnson County, Iowa -City, _Iowa; thence South 88" 40' 00" West, 341.17 feet along. the north line of the Southwest quarter of said Section 24 to a 'point (this Is an assumed bearing for purposes of this= description only); thence.South 00°_ 50' 00" East, 630.18 -'feet -to a point of intersection with the northeasterly right-of-way line of U.S.Highway #6 and point of beginning of tract herein described; thence North 510 30' 40" West, 549.75 feet along the northeasterly right-of-way line of said Highway #6 to a, point; thence North 38 41' 40" East, 1017.30 feet to a point; thence North 51",18' 20" West 70.0 feet to` a ' point of Intersection with the centerline spur; track of the Chicago;`. Rock Island and Pacific Railroad; thence North 38° 41' 40" East, 482.15 feet along the centerline of said spur track to a point; thence South 30' 31' `40'.' West, 71.98 feet along the centerline spur track of the Chicago, ' Rock Island and ;> Pacific Railroad to a point of curve; thence Southerly 481.75 feet along a 379.50 foot radius curve concave easterly and subtended by.a 450.05 foot chord bearing South 5" 50'-20" East, to 'a point of tangency thence 'continuing South 42'12''20"East, 802.57 -feet along the centerline, spur-track'of said'.., C.R.I. and P. Railroad to a point of curve; thence Southeasterly 125.06 feet along a'382.04 foot radius curve concave northeasterly and subtended by a` 124.90 foot chord bearing South '51° 36''50" East, to a'point `of. -tangency; thence South 61' 01' 20 -East 74.22 feet to a point of intersection with the northwesterly right-of-way line of Heinz Road; thence South 290 08' 32" West '. 927.13 feet along the northwesterly right-of-way line of said -Heinz Road to a point of intersection with the northeasterly right-of-way line of said U.S. Highway #6;I thence North 58` 26' 03" West 60.28 feet along the northeasterly, right-of-way line of saidHighwayto a point; thence North 57` 32' -41" West; 308.19 feet along the northeasterly right-of-way'; line of said Highway to a point; thence North 57" 18' 25" West 186.00 feet along the northeasterly right- of-way line of, said Highway to a point; thence'North `55" 51' 48" West, 199.97 1 1 feet. along the northeasterly right-of-way line of said Highway to a 'point; thence North 51` 56' 03" West, 100.0 feet along the northeasterly right-of-way line ,of,said Highway to point of beginning;_: and containing 32.02 acres more or less,' and subject to easements and restrictions of record. - -2- included in this area are: =: An arterial street feeding into a major U.S. Highway. The University campus separated by the river, the highway, and the railroad. The location of both through -trackage and switching facilities for tworailroadlines. The location of water treatment plants for both the University of Iowa and Iowa City. The location of the sewage treatment plant on the east bank -of the river slightly north of U.S. 6; (See Figure 2.) Segment II ---This portion of the project area separates Iowa City and Coralville. On the east side of the river (Iowa City), there exists a considerable portion of undeveloped land with development pressures being applied.Most of --this area is zoned RIA, though zone) slightly north of there exists an area of RM(multi-family • Park Road. _ The west side of the river (Coralville), commercial, industrial, and residential uses have developed.: The major portion of this area is zoned -I2,(heavy . industry),; with a small portion zoned R-1 (single family residential). (See Figure 3.) Segment III - This area.is presently the least developed of the corridor region. Two serious problems -exist in this area: a) -Limestone quarry operation b) ; Potential flooding of residential units situated directly - south of the Dam. _ (See Figure 4.) Segment IV - The land use of this area is extremely chaotic, in that is serious incompatible uses exist side by side. Flooding a problem of the developmentwithin this area -- since much.of the land and some lies.within the floodplain. On the east side of the river, the — area contains M2 (heavy industrial); RIA (single family), and Ml is M2 in the (light industrial) zones. The west side 'of the river VC VP are floating northern section and Cl in the southern._: and zones in the area. „• (See Figure 5.) • III. Historical Resources Iowa City and Johnson County are extremely gifted in historical and traditional elements. --Prior to pioneer settlements,, the Iowa River banks served as.village sites for two of the Indian tribes, the Poweshiks and. the'Wapashashieks. As; the western -white migration began, communities sprang up. - Napoleon, located on the east side of the river, was the first county seat. The first territorial seat was located in Johnson County primarily because of the aesthetic beauty of the Iowa River (The Founding of Iowa City by Benjamin F. Shambaugh). As the area became more settled, industrial development included damming of the river for ease of -travel, and_milling operations, including Terrill's Mill, sprang up. With the exception of the Old Capitol building,none of the original structures` remain. -However, it is the intent of this project to preserve these areas as historic relics of natural' beauty.__ IV. Relationship of Proposed Project to City's Goals The Iowa River Corridor is subject to three -local -jurisdictions; • ` Iowa City, Coralville, and Johnson County. Iowa City's Riverfront Commission, an advisory -body 'to the City Council, endorses the: * "preservation, enhancement, and appropriate development ' of, the Iowa Riverandthe land adjacent -and, -integrally relatedtoit." - - Coralville Planning Commission: * " ... an objective of community development ...`to encourage less attractive' industrial uses to improve their appearance by any method possible ..." * "It should be an objective, to develop a;, pattern of recreational facilities and areas easily accessible to all residents ..." Johnson County Regional Planning Commission: - - * "Preserve the remaining woodland areas, scenic vistas, and historical sites ' * "Provide a complete range of parks, recreation facilities '• and programs, and _open spaced areas for the present and future people of Johnson County'.,," _q_ , * "Protect natural drainage courses and waterways ..." V. Environmental Impacts - A. Acquisition Impacts * Human_ elements:the acquisition of property along the corridor could entail the relocation of commercial/ industrial/residential' tenants.' * Financial elements: depending on the amount of property acquired, tax -would a revenue loss occur. - * Wildlife elements: there would be a slight disruption of wildlife patterns if demolition- and regrading ,were to occur. * Pollution: more water, air, and noise pollution would be generated during the demolition.stage. B. Development and User Impacts ' Human elements: there would be more recreational and open space areas for the residents to enjoy:: Increased oppor- tunities for exploration of natural wildlife and vegetation and historical information would be made available. * Financial impacts: If the County, Coralville, and Iowa City purchase the corridor regionthen property would be removed from the tax roles. However, this would not necessarily precipitate an increase in taxes, in that if the river region were enhancedand recreational facilities 'available, 'then tourism could rise and increase` merchants' trade. - * Wildlife impact: With the increased recreational activity along the river- there will be a slightdisturbance of wildlife. _ The wildlife along the riverfront is typical of ` that found in oak --hickory hardwoods and agricultural lands. White-tailed deer, rabbit,` squirrel, quail, and pheasant are the primary game species. Songbirds `exist `in the wood- land and cropland' areas. In the urban portion of:the river corridor, squirrels, rabbits, and songbirds coexist with urbanization. (Stanley Consultant Report.) As conservation measures protect wildlife,:the -disturbance will not be `- prolonged. t * --Aesthetic impact: With the removal of unattractive industries - and the preservation of the natural scenic beauty, the corridor area's aesthetic beauty will be enhanced. As the • . I impact of this project is preser vation and enhancement; ancement, zoning of adjacent areas will reflect the aesthetic concepts of the river area. C. Adverse Impacts An increase in litter due to the nature of the development. An increase in recreational areas exposed to annoying insects due to the location of the project. An increase in safety hazards due to the increase of people in the area. * Short -termed pollution (water, air, and noise) during the acquisition/demolition. * Portions of the proposed project area are more subject to flooding due to the nature of the topography. * An existence of a -sense of -infringement -of -privacy f privacyor - ordeprivation on the part of potential developers and landowners. • VI. Ways to minimize some of the adverse effects of the proposed project: With good planning and proper use of landscape design, the effects of the recreational activities along the riverfront could be minimal. Increased maintenance and litter receptacles would minimize the litter_ The quality of natural vegetation will improve with the clearing of vegetation which is destructive to some of the existing woodlands. The clearing process also has a potential to decrease the annoying insect population. The area subject to flooding can be engineered to be able to withstand flooding with a minimum of damage. VII. Adverse environmental impacts which cannot be avoided should the project be implemented: Short-term increase in dust, noise, -water and air pollution during renovation stage. Initial disruption of some wildlife. -G- • Loss of tax revenue if property is purchased. Loss of sense of privacy of residents adjacent to, the area. VIII. Existing conditions and trends likely to occur without project implementation (based on Iowa River Corridor Study Phase One- InventoEX, Survey, and Anal sis, Stanley Consultants, Inc:; 6 75). Intensive land use development contiguous to.riverfront. Flooding of developed property and floodplain land use controls which do not restrict development, but allows the development to be raised above the flood levels. Encroachment of land and rail transport modes upon the river corridor. Severe shoreline erosion. Land use beyond capacity of support.- Mineral extraction sites, both past and present operations, which have done irreparable damage to the landscaper Undesirable land use patterns. IX. Commitments of resources which would be involved should the proposal be implemented. Should the acquisition and enhancement plan be implemented; the ' commitment of funds is neither irreversible nor irretrievable. The City quite, possibly would buy the land, enhance the area, restrict zoning, and sell the land .at>fair -market value. The temporary erosion of soil during the development process will - be restored during the preservation stages of,the-project. X. Alternatives to the proposed plan. There are basically three alternatives to this development plan: A. - Do Nothing B. Draw Up a Different Plan of Action C. Change the Dimensions of the Project Area 1. Do Nothing -- If this course of action were initiated, the riverfront region would continue -to"deteriorate; • the adjacent 'lands would develop, and the river, 3 -7- instead of an asset to Johnson County, Iowa City, and Coralville, would become a detriment: 2. Draw Up a Different Plan of Action -- If the City were -- not committed to historical, natural wildlife and vegetation preservation, 'and 'open "space and recreational facilities, then more, options would be available to the river corridor region. However, if the City chose to disregard these limitations, then .the federal government would not participate inthefunding. Since a different plan has to incorporate these 3 areas of preservation, the magnitude of the project would be the only area of -change. 5 3. Change of Dimensions -- The scope of the, proposed project area could be decreased and limited to the portion of the river or lands -and land uses adjacent to the rivercorridor that is in -the most deteriorated _ state; the one with 'the -most historical value; the one with the most natural vegetation; or any other criteria for `preservation. --> However, ;a, piecemeal ` preservation approach to a natural body -of water could possibly be more detrimental and/or costly than . , the proposed project.-: For,example,;if the historical areas were preserved and enhanced, without upgrading the riverbank or restricting the zoning, these sites - would have a shorter life span and a less aesthetically appealing value. XI Other Information * An Environmental Review Record has been established for this Iowa River Corridor Project and may be.examined and copied in the City Clerk's Office, Civic Center,' 410 E. Washington Street, Iowa City, Iowa. * At this time, no further environmental review of this project is proposed to be conducted and it is the 'intention of the City of Iowa City; to request HUD to release funds for this _- project 1975. Comments on the Notice of Intent Not to File an Environmental Im act Statement. concerning t e_.lowa River Corridor Project may a submitted to the City Manager of the City of Iowa City, from-, 1975,,to 1975. * The applicant for these funds is the City of Iowa City. The chief executive officer -of -the applicant is Neal Berlin, City Manager, City of Iowa City. SEGMENT R - - uTr unm INTERSTATE so ., D X I2 I7 __.-- -.... l773 II - • RIA �,.. RIA RIA i ' + n PARK ROAD f H .. u -.. M;FA e'm, IMA _ goo too of G - _ RIA I �. AW . FIGURE 3 1 _2 Sycamore Street and is a_ residential` area composed of four existing parts or additions and one proposed subdivision. - 2. Washington-Park Addition - Located on, the east side of Iowa City, bounded on the north by Rochester Avenue,:on the south by Court Street, and on the west and east by; FirstAvenue' and -- Scott Boulevard, respectively.- 3.' -City =Park Located on the west bank of the Iowa River in the ---north/northwest section of Iowa City. D. Purpose The purpose of the Parks and Recreational Facilities Program is to provide an "increased number of small neigh- borhood parks" (Park and Recreation`Survey for Iowa ,City - <. Burke Report; Preliminary Park and Recreation Plan 1976 - 1980); to continue to provide -and upgrade active and pas- sive recreation facilities for neighborhood residents;. and to obtain maximum usage of City Park by all groups within the community. E. Phase I-(Acquisition) The initial phase (Phase I)-of-the proposed project will be for acquisition and grading of ,14 acres of land injthe Hollywood Manor area for $50,000 and the acquisition and grading of 3.5 acres of land in the=Oakwoods-Washington Park area for $35,000." F. Phase II (Improvements) This phase will be a City-wide campaign, to upgrade neigh- borhood parks and to provide'.a broader range of-recrea- tional facilities than is presently,available at both the neighborhood level and the community level (City Park); for $275,000. - * The proposed plan will-provide-shelters, surfacing, : -- apparatus, landscaping,: etc., inexistingneighborhood parks to increase their usage. * The proposed plan (City Park) will provide immediate`, roadwork,:bicycle paths,playground renovation, apparatus, pond stabilization, spray pool, log cabin rehabilitation, -6- lternatives to the Parks and There are basically two a Recreation Plan: A. Do Nothing B,- Change the scope .of the Plan The federal government might this - - 1, Do Nothing - disapprove financial participation in plan, and none of the environmsl�ional lsites' listed would apply: The acquisition Would; probably develop inY.o residential Park and the neighboring dwellings, and City to deteriorate. parks would continue -Plan The Park and- 2. of the - Change the Scope imished to be dmen£ Recreation Plan could of -parks; and ;deveks;'or a) acquisition c) upgrade b) upgrading existing-parroach to cemeal app a p ie- City Park.However, park system could entail a comprehensive impacts " more expense, greater environmental and an unfulfillment be prolonged which would', of City goals. • XI. OTHER INFORMATION - stablid for m EnvironmentaRecreationeActivitieshas ePro�en * ect and may be An this the City Clerk's Office, Civic ied in Iowa. examined and cop ton: street, -Iowa City, Washing Center, _410 East Review of this *-At this time, no further_Environmental is to'be con ductedtonYeQuestD to project proposed intention.of the City:of Iowa City 1975 �— release funds for this project File -_ the Notice of Intent Not to the Par s an on er * Comments on of then mental Im act stet9uemittedCtonthe".City Manag Activities may 1975, to— City Of Iowa City, from —� of Iowa City. for these funds is the City licant is Neal * applicant The app The chief, executive off: Iowa Iowa. City Berlin, City Manager, • ment In order to implement increased colnspectorewill be activities,__a new Minimal Housing 30 October 197S cc: Codc Enforcement Division City C&err HAYEK, HAYEK & HAYEK WILL J. HAYEK --- -- ATTORNEYS AT LAW - AREA CODE 319 .. _ __- - 337-9606 - JOHN W. HAYEK- 110 EAST WASHINGTON STREET C. PETER HAYEK _ _. IOWA CITY. IOWA 52240 _ October 17, 1975 The Honorable Mayor and City Council of Iowa City Civic Center Iowa City.---Iowa 52240 Re: Building Moratorium 1vlayor and Council Members: Recently the City Council asked the Legal Department to report on the authority of the City Council to adopt moratorium on building and development in certain areas of Iowa City pending completion of planning work directed to either rezoning of the property, or acquisition of the property for public purposes. We have completed our preliminary study on this question. Mr. Paul Lauritzen, a law clerk in our office, has prepared a memorandum of law in this subject. Although this memorandum was intended for internal office use, it does contain a discussion of the legal points involved and case authority and I have therefore filed a copy of the memorandum with the City Clerk. This memorandum is "open to the review of any interested parties and I,am sure that the Clerk would be happy to provide copies to anyone requesting them. As you are no doubt aware the. Iowa City Zoning Ordinance presently does contain'a limited moratorium in Section_ 8., 10.32(D). That section provides that after the City Council has set a public hearing on a proposed amendment to the zoning ordinance no building permit will be issued for a period of sixty days for any building or improvement which is not consistent with the proposed orcontemplated zoning category. Our research leads us to believe that in specific =instances where the need for a longer period of time could be demon- strated a moratorium of longer duration.mightwell be supported by the . courts. For example, a six-month moratorium may well be appropriate with respect to the riverfront study. The present Iowa City Zoning Ordinance does not freeze all development. However, we believe that a strong argument could be _3- Iowa (in 1929) ordinance. Emphasizing that in municipalities had only essly granted by the Legislature ("Dillon's` Rule") the that power expr nly possible authority for the ordinance was Court said the oCh. 415 ricts) (repealed in 1975), and that chapter (Restricted Residence Dist regulation of and not the restriction or authorized only prohibition attempted by Sioux City. Iowa City on the other hand, has a comprehensive zoning ordinance, can avail itself of Ch. 414, and is authorized by 414. 2 to restrict as well as regulate, at the city had the right Secondly, in support of its argument th- pass ce while its general zoning plan was being to an emergency ordinan developed, Sioux City cited the landmark case of Miller V. Board of Public Works of the City of:Los Ani 234 P. 381 (Cal. 1925) where ency measure The Iowa such an ordinance was upheld as an emerg - Court rejected Miller stating: ,[D]elegations of power by the state to trictly construed and convey no municipalities are s e expressed a ied powers except thoshe ant; hencethe municipal to carry out the object of police power. is derived whhollyolly from the tate. This is Constitution anted not true under the California law, as under the lice power is of that state the right to exercise the , and where the orpo- in the Constitution to the municipality, it is except ration derives its police power from the Constitution, p as broad as that possessed by the legislature itself, ined to local affairs:' At 128 that it must be conf The advent of the Home Rule in Iowa and the express words of Article 40 of the Iowa Constitution, "The rule or proposition of law that a III §_ - --- - - ME municipal corporation possesses and can exercise only those powers granted in express words is not a part of the law of this state, clearly undercut the Court's rationale for rejecting Miller and render Downey unauthoritative on the question of Iowa City's power to enact an interim control under Ch. 414. My research indicates, though not conclusively, that in most jurisdictions_ with enabling acts substantially similar to Ch. 414, interim controls would not be beyond the power of the municipality. Several ; cases holding interim ordinances invalid for failure to comply with procedural requirements of the enabling act (notice, public hearings, etc. ) indicate by implication that had those requirements been satisfied, the interim controls would have been valid under enabling acts which did not expressly authorize such. controls. See especially State ex rel. Kramer v. Schwartz, 82 S. W. 2d 63 (Mo., 1935); State ex rel. Fairmount Center Company v. Arnold, 34 N. E. 2d 777 (Ohio 1941). Three distinguish- - able cases indicate the contrary. Lancaster Development, Ltd. v. River Forest, 228 N. E. 2d 526 (Ill. App. 196 7) (Resolution suspending properly enacted zoning ordinances invalid: failure to comply with statutory requisites for amending zoning ordinances);' Alexander, v. Minneapolis, 125 N. W 2d 583 (Minn. 1963) (Resolution prohibiting building permits; reliance on "Dillon's Rule"prohibition had been in effect nine years); Kline v. Harrisburg, 68 A. 2d 182 (Pa. 1949) (Reliance on "Dillon's Rule"). Finally, at least one 5_ court expressly validated an interim control ordinance under an enabling act similar to Ch. 414. Darlington v. Board of Councilmen, 140 S. W. 2d 392 (Ky. 1940) (Two year moratorium to maintain status quo while a generalzoning ordinance was considered by a newly enacted planning and zoning commission and enacted by the council). All jurisdictions save one (McCurley v. Bl Reno, 280 P. 467 [Okla., 1921]) mandate strict compliance with the procedural requirements of the enabling act. Therefore, if Iowa City were to enact an interim control under the authority of Ch. 4141it would have to follow the procedures for amending, repealing, etc. , zoning ordinances set forth- in §414. 5-(i. e., notice and public hearing). John, my reading of Chapter 414 indicates that in amending, supplementing, changing, modifying or repealing zoning ordinances the statute only requires that §414. 5 be followed, and that the zoning commission need not study and report. You indicated to me that the Iowa City practice is different, i. e., changes go to the Zoning Corn - mission first. If the City Charter does not require submission to the Zoning Commission you may wantto-checkmy interpretation of 9414. 5 and §414.6: that zoning commission participation is mandatory only in the creation of the "original districts, and appropriate regulations and restrictions to be enforced therein."' §414.6. Whatever the proper - - interpretation, it is incumbent upon the city to enact any interim control - - 6 - via procedures it would employ in enacting any other zoning amendment, change, etc. - The reasonableness of the ordinance is a function of more than its duration. Courts generally look to the progress of the study being made, nearness to completion and prospects for passage of the new ordinance and the city's good faith or lack thereof,', along with the interim ordinance's duration. Campana v. Clark, 197 A 2d 711 (N. J. Super., 1964) (thirty-one months not unreasonable). Obviously, the shorter the duration of the interim control the less likely it will be invalidated on unreasonableness grounds. -II Home Rule (Much of this discussion will track the Home Rule section of the Design Review memo). Does Ch. 364 of the Iowa Code authorize Iowa City to enact an interim control ordinance without following the procedures required by 5§414.4-.6?> Section 364.1 states: A city may, except as expressly limited by the Constitution, and if not inconsistent with the laws of the General Assembly, exercise any power and perform any function it deems appropriate to protect and preserve the rights, privileges, and property of the -city or its residents, and to preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents. The above question resolves itself to whether the enactment of an interim ordinancewithout satisfying §§414.4 through 414.6 is "in- consistent with the laws of the General Assembly". _ 7 Such an enactment would appear to be "inconsistent" and therefore not authorized by §364. 1 (see §§ 364. 3(3) and 364. 2(2) -: reproduced in the appendix.) However, some counter-arguments are available. First, in iVlonmouth Lumber Company v. Ocean Township, urt, upholding the validity of a "stop-gap" 87 A. 2d 9 (N. J., 1952) the co or "freezing" ordinance enacted by way of proper procedures stated that: tThe City's] action is within the intent and purpose of the statutes relating to planning - It is entirely consistent with the theory of planning to provide, after study of the conditions of the community, a means of preventing -c paned t the ges in e character thereof which might be opposed theory of planning and zoning pending the formulation of a"detailed and complete "comprehensive plan" for the municipality, either new or in substitution for an outmoded plan At 14. The second counter-argument to the position that an interim -- ordinance enacted without §§ 414.4 6 procedures would be inconsistent with state law and therefore not authorized by 5364. l is that the ordinance is simply not a zoning ordinance. Thus in A. J. Abe— rinan• Incv. City of (Pa• , 1954) the city enacted an ordinance New Kensington, 105 A. 2d 586 without enabling act procedures which ordinance gave the city council the discretionary power to refuse building permits if the applications did not comply with restrictions in the ordinance restrictions identical propolek to those in then zoning ordinance. The court agreed that this was not a zoning ordinance and stated that it was valid, but based its decision in y deny building permits for favor of the city on grounds that a city ma uses not in harmony with a pending zoning ordinance. III - Denial of Building Permits Once the Riverfront Ordinance is reported upon the the council _ the city may either administratively or by ordinance refuse to issue building permits -for structures which would not conform to the new ordinance. The vast majority of jurisdictions have upheld the refusal to issue such building permits while the new ordinance is pending. See e. g. , State ex rel. Jaytex Realty Company v. Green, 105 S. 2d 817 (Fla. App. 1958); Chicago Title and Trust Company v. Palantine, 160 N. E. 2d 697 (Ill. App. -1959);-Westerherde v. Obernuefermann, 279 N. E. 2d 402 (Ill. App. , 1972). Thus the court, in Aberman, supra, held that the city in passing the building permit_ ordinance (See part II, supra) was merely following court decisions that a property owner had no vested right to a building permit for a use in harmony with existing legislation but in conflict with a pending and later enacted zoning ordinance, and held that the city was merely announcing its intention to refuse any building permit conflicting with the proposed final zoning ordinance. One Iowa case, Brackett v. City of Des Moines, 67 N. W. 2d 542 (1954) indicates, at least tangentially, agreement with the Aberman position. Although precise dates are not available, the following can be inferred from the case (a mandamus action); 10 that the new ordinance was not yet "pending". See e.g., Hollywood v. Petterson, 178 S. _2d 919 (Fla. App. 1965) (Indication of intent to rezone insufficient). State ex rel. Waltz, v. Independence, 125 N. E. 2d 911 (Ohio App. 952) (Denial of application for building permit prior to public hearings on rezoning ordinance invalid). Generally, an ordinance is pending when it is in the public hearing stage. Some courts indicate that mere public announcement of the date of the upcoming public hearing on the ordinance is sufficient to constitute pendency and others, e. g. , Aberman"'supra, hold that an ordinance is pending from the time the zoning commission submits its final report to the council. The other set of situations in which courts have refused to sanction permit denials is where the refusal is an obvious bad faith attempt by the ,city to delay the issuance so that it can enact an ordinance prohibiting the proposed structure, e. g. , in response to petitions from the applicant's neighbors. Harris v. Coffey, 179 N.Y. S. 2d 8 (N.Y., 1957); Commercial Properties, Inc.` v Peternel, 211 A 2d 514 (Pa., 1963); Brown v. Terhune, 18 A 2d 73 (N. J., 1941).- Because courts will weigh the equities in proceedings stemming from denials of building permits, it is essential that the city publicize its intention at the earliest possible moment. By so doing, the city can argue that the permit applicant was not acting -in good faith in merely trying to obtain a vested right prior to zoning change. In Huff v. Des Moines, 56 N. W. 2d 54 (Iowa, 1952), in upholding the denial of a building permit, the Iowa Court stated: Almost from the date of the building permit and well prior to any change in the ordinance, appellants knew stepswere being taken to restrict, if not prohibit, the construction of the park. In the face of thistheydeliberately went ahead with t's nor heir project. We find no vested rights m app equitable circumstances At 57. -- IV Recommendations Unless the Iowa Court is a good deal more liberal than I anticipate, the city should not rely upon §364. 1 and attempt to enact ,owing Ch. 414 procedures. an interim control without foNeither should it depend upon denial of building permits from the present until the ted. However, I believe Iowa City's Riverfront Ordinance is enac objectives can be realized by way of the following: cticable, give public notice of (1) The city should, as soon as pra (a) the soon to be enacted interim control ordinance - (see (2) and (3), infra), and (b) the soon t0 be -enacted` Riverfront Ordinance. (2) if it is deemed necessary for the interim ordinance to be reported upon by the Zoning Commision, the city should immediately mmission with the request that it report submit the ordinance to that co to the council as, rapidly as possible. (3) As soon as it is practicable, the city should give §414. 4 notice and commence public hearings on the interim ordinance. >: r -. 17\iClPal. %01I�G. Ss14S- -. -CI'SIE&—N CHAPTER 414 PT i MUNICIPAL ZONING 3 MJ Alerted w In 1,329.1 f -- - - ADp1im61a to VI elttm - 1 414.13 Decision on appeal. ' 111nC� Building restrictions—P Owers granted. 414.14 rote required. oldie 414.1 414.2 Districts.. _. 41.4.15, Petition for certiorari. order. :nate, every _ 414.3 Basis of regulations. 414.16 Writ—restraining Regulations and boundaries. 414.17 Return.; Such 414.4 41.4.18 Trial—judgment—costs. •cation 414.5. Changes—hearing—notice. 414.19 Preference in trial: 414.6 Zoning commission. violations. ` ,d t -he 414.7 Eoard of adjustment. 414.20 Actions to correct rules. ordinances, and stat- acaith ,-cd is ' in- 414.3 \tembersh[p. eneral procedure. 414.21 414.9 Rules—meeGnos—g Conflicting utes. by GIGA, ch 1033„312. ar - s may - 4142 Repealed 414.10:Appeals. -. `. 41423 Extending beyond city limits..: Effect of appeal. - �.. at. any nt.or-. 414.11 "-414.12 Powers:..: fish a ,Ise of -. pied. par - the peculiar suitability of such area for par- a view to conserving m ement 414,1 Building restrictions —powers health, the`value: titular uses, and .vith buildings and encouraging • this �. .For the purpose of promoting the general welfare of the of appropriate u;e.ul tan,3;tC,Gti50, 54 53.62166, •�-The d fifty -safety; morals, or _ 1 any city is hereby empowered of IC'2.1 ' . 3Y. 35; 3J,e • . `cents'. _ community, umber regulate and 'restrict the height,_. other strut- 71, i3 ;414.3; 65GA'. ch 1037.§321 July 1, iy" only to. -.,i9.- - :: 'storiesrand size of buildings and of lot that may be pmey,iment eriecuce --=- boundaries. The; 35. 113123: °' `tures;thepercentage 3: size of _ ards, courts,- and other emulations and 411,1 Re„ shall provide for the 71 .he ji copied, the den,ity of population, and .open. spaces• - -: structures. use of -buildings,. council Of such city- manner in tvbich such regula toz_ and re `; n .the -location and 11 and -land' for trade, �ndIIlt 35. 39 GIn=e CIG tion= nrid the ho •uric o` -u- • fined, e tabsixd, and c -t c.�=G, as3 itdinn+ SRcert, i of:cr Purpose a6iCz 711 73,§414.1; 65GA, ch 4OS71 '.e dc.et.. from time'to time amended, suPPlemented: or regulation, restric- ti such 50, 54, rS. �Z• ' changed: llowever, no such ctive ome ethanal bl'- the pro- !. - 4321 -. AmendmenteA,etlee July 1.. 1911 --- Oa-;,tiblieahearingi in relation pat . shall 33 enter• 414 DlstricL=. For any or all of said pun- hereinafter a1fLCi ,thick Parties in Interest and citizens to be heard At least 5f - d. sur poses the local legislative body, Po may divide the city have an opportunity_ Of such days' notice of the time and DlDcL struc• and referred to as the council, number, shape, and area teen of gen- hearinc shall be publi�heu in a P P 2 vner or into districts Of such out the - as may be deemed be t_suited to carry -:within is- l i1 Z73 3414.4; oral clrculatien in such City • 96 :_ er3 54, a(, G_, see and .person t purposes of'thi�:chapter;- and erecta and restrict the erection, 9 i8 _C.tr, ,,0, t'SC.1, ch 1037,§321 at shall tracts it may regulate - reconstruction, alteration, landpa�ll - r-et^pal to t^ lids'•'• pas July t. 19 by any access i construction, or use of buildmga 'structures, - restrictions shall gs Am admen[ elre=tive Such reg - wrier of } such regulations anti uniform for each class or kind of buildings tlons thuhtions.; ; 414 r Changes—licnring—notice- restrictions, ani boundaries may. les may. es shall ut I outrictt ctntayi di from those Ic.regunotherfrom time to time; be amended, suPP or repealed. In case; how-. 6 About .- - throne 31; 3a, 39,9tt1a3; C46. 50, 54, changed, modified, such change'si;ned chapter 1 districts. (C24, . 7, s 65GA• ch703i,f321 � protest against -by hers' of twenty Percent or .more -:•_r;; 31. - ',71; 73. - - 58; 62; 66; 71, 13,'14142; oral�n� - _ the o - of the area of the lots lncluded�ia such h 1034. /tmendmenteCeetlee�=v> 1,3sau _ certi6mtion of wntna d1+_. ,- either -proposedchange,br a` '-o=e the depth - 414.3 -- Basis of regulations. Such regulations a:comPre- cent in the rear. thereo eete.^.d.n,a or not to - exceed two_ _hund^ed - vislors. shall be made in accordance with - -. 1. hensive and designed to lessen congas- .of one lot :-feet therefrom, or of those directly opposite depth (if one or not rc herr plan tion In _treat; to safety s _.theceto; extending the feet from the; street 1 '_ Impose Impose flood,''panic,-and-other-.:dangers; to provide adc• to exceed twolllundred - -_. such opposite lotssuch-. a meth _ require' -eye of - health and thegeneral welfare; heal[ light and air; to prevent the overcrowd- of frontage'oi' ment shall not become c .ems : e except b_ -least oI a:1 .'._ chapter - _ inof land. to -avoid undue concentration provi,ion _ favorable vote`of at .knee-ol:rtis of the ccurcil. She p ovi_idas 1. 3a• 39- population; to facilitate the adequate Sew schools, the members 411:1 relat1- c o nublic nrarrZ5 and AU3.l?.'t 301 M transportation, water, section sectton o1I1c1a1 notice shall apl ll eq lallu 3� §Glial'.; C G 1 27, raSucharclvlationsishall be madewnts.ithrensdn other things, as to or amendments.- 1� l 58, 62, GG; i7, 13,54L4.5] able consideration, :among the district and 50.54, - - - - the character of the area of _. - �.n- o. vL...... _____ _. ....� _ .eta... -i+..• a _ g414 -r,, C1TIES-Nt;\ICtt•:lT, ZONING '- to a,•all nutes of its ced- C olte hho tiingathkeep `-itself 414.6 Zonis commis=ion. In order of the Powers conferred br,ihis chapter. - _ ngs ofeacheach member upon each question, or if absent_ or failing to _vote, the council shall .appoint a commission, [o: be : indicating such fact,- and shall keep recon!. - kno\vn'as the zoning commission, to, recom- of Its examinations and other_ ofliciai.action;. -in mend, the bo of the-v5rious original meLricts, all of which shall he Immediately filed the • anti appropriate regulation-._.. .re• to. be enforced therein.- \Vhere a`City o-24 of the board 5. 39- anti shall . a public record. C24, 21.;31, 30. 33,:1:[6x; C16, FiO. 54, 5$, 62, C.G. - - strictions plan comms ton already exists it may be commission. Such 1 1 731114-s1 ---, j - -- appointed as the zoning commi.�ion shall. with due diligence. prepare . nef.rr.d to in 1129.12 to eperon 1[ a preliminary report and -hold :public hearings final report: and �tljustmeni�emay�be takenl�b Y any a^_- _1 thereon before submittIngIts such council shall not hold its P ublic hearings grieved -or any -officer, department. hmrd. affected by any _ -- or take action until It has received the final After the adoption. or bureau of the municipality decision of the administrative officer:-.:.Surh _ report of_such commission. re ort regulations.- restrict and bound- -.appeal-.shall be Laken within a .reasonable ' -:ofthe -board by ---time -as 1 - aries of'districis, the zoning commission may. to the council _ providedby.Chetvles filing with the' officer from whom .the appeal from time to time.- recommend.. amendments, supplements. changes, or modifi-- 54, is taken and with the board of adjustment a specifying the grounds thert•• - -:- rGt.i:; C4G, 50, cations. [CA 27. 31; 35. 3D . notice of_appeal or. The officer from whom the appeal is taken 58. 62, GG. 71' ,4'S-111.61 shall forthwith transmit to -the board all the li.("red to 1" 11 2''9 a ers constituting the record upon which the [C24, 27, 31. j 414,7 Board of aA3ttstment. The council ofaboard action appealed from was taken. 35. 39.16461: C.6: 50. Si. 53, 62, 66, il, i3,§414,101 _. 1 _ shall provide for the appointment and in the regulations and re. Referred W I. MS.t2 1 of adjustment strictions adopted pursuant to the authority that e said - Of herance WN of thischapter jstmentlmav inlaPPropriae he cases and ofatheaactionsap proceedings in414.11 furt unless the officer from whom the i and subject to apProprlate conditions-. to the pealedfrom, of adjust --appeal istakencertlfies to teal l •',,�' ....safeguards .make_ special exceptions. in: harmony with its shalhe men[ after the nolle[. of app have been -. that by reason of facts stated 1 terms. of the ordinances- general purpose and intent and in accordance filed with him In certificate a a10}lifeiorlpropen nis rt)n In 1 with general -or .specific` ruleowner that any property eau econ- �imminent peril not be stayed oth• - -such ^\-_tamed and Provide. - -aggrieved-by-the-action of Che.councii in the case proceedings shall ordejust which may by a restrainingbodof < - adoption of such regulations and restrictions suchred board of adjustment di• envlse than a begrantedby the board of adjustment or b\ a on notice to the a t _ mayp clition to modify regulations and restrictions 31s application ;ooHycer from[ hon tappeal is taken rest applied to such property owners (C2.1, 62. 66 N. 73.341x.71 27, 31, 35, aq>fW6' 73.1414111 35, 39,gt:1 i8; C46. 50, 54. 53. cos, 50due u54 aS 62, 66CZ1, -35, A 101 {7, editorially divided �- A.fersed to in 1229.12 - • n.f.rmd to in 1329.12 414.12-Po,yers. The boas of adjustment - -- 414.8Ile The board of adjust- each be shall have the following powers: decide appeals five ment shalt consist of five members pt appointed for a term of five years, excepting for one 1. To hear and nyoder. require - alleged there Is error in any made, by an i that when the board shall first be created for a term of five ment.'decision.' or determination official in the enforcement ct } member shall be appointed for term of four years, one for administrative chapter or of any ordinance adopted Pur' _ .years, .one tone for a term Of two term of three years, for a term of one year. item- suant thereto. -:. ,.. 2 To hear and decide special exceptions to 1 years, and one bers shall be removable for cause by the ap• charges and the terms of the ordinance upon which surb 1 pointing al upon written shall be filled , board is required to pass uncal in specific ca° _ after public hearing. Vacancies - term o[ any member whose 3. To authorize upon app from the terms of the 0rdinallrr f - - 'A for the. unexpired term becomes vacant. C24. 27, 31, 35. 39,ir•4•ix , such variance. e. public interc•t- will not be contrary to the - P , n - _i -,3,9414.81 - -- - C46, 50, -.51, 53,-G2. GG,as as owing ao special conditions a !itch! X Rules -meetings -•general procedure. -rules in. accordance with - -cement of the provisionsfiardship rtl,mit `O will result in unnecessary ,!. shall Ile < e The board sha11 adopt of any ordinance adopted pur- -board _ that the spirit -of the. ordinance �31. ' justfc,gd -' the provisions suant to this chapter. Meetings of the ITand served and substantial 62. r :.31. 35,...',9,3Gif.1;.C46. 50.-54, - _ -_-sh511 be at the call of shallas the. board may. deter• - 'such 1 314.1 114421 - other times at Ill his ahsellce, the mine. Such chairman, oilml IsterOaths ami it red to to 1322.12 in excrdiink t`•" 1" actingchairman. may C the attendance of u•tutesses. 011 meet- be open to the P ublic. 414.13 Decision on aPPeal- above-mentioned powers such board m'v f .. ]t Ings of the hoard shall \ _ -atG7.4 CITIES__I,0 'ERS AND DUTIES _ " CI4APTER 364 .- S 1'U\CERS AND DUTIES OF CITIES Ref,,ed to in MGM, 392.9. 1,6.1 by 61GA. ch ID 1199, eReettre July 1. I Chapter 764 Cud. 1973. repealed See note undo Title xY p. 1:59 - - . 364.9 Flood control—railtva}• tracks. -n1.1 -Scope. 3642 Vesting of power. 361.10.. Railway. crossing. 364.11, Street construction by railways. 4.- lit - 364.3 Limitation of powers. - 304.12 Responsibility for publie places. - - -5; - 364.4 Propertg right. -. of municipalit[e;. -. 3r,1.13 Installments. - - 3645 joint action—league 364.14- Personal .injuries. - - - 361.6 - Procedure. --- -:- -364.15 Changing grade of streets. 364.7- Disposal of property. 3645 Overpasses or underpasses. '. A except as expressly the voters at any city- election. Upon receipt e � as defined in section 362.4 a6t1 scope. cit%-may. limited b} the Constitution. and if not ancon- of a valid.pe[itios requestingvalid that a proposal be submitted to the with the laws of the general assembly. loers..the council shall submit the proposal r3;intent -! any Power and. Perform any function at the nest regular city election or at a special exercise it deems appropriate to. Protect and- preserve the city election -.called: for that purpose prior to the If a majority of the rights, privileges, and properh•.°t or. of its residents, and to preserve and im- _-nP,ct regular city ,election. those. voting approves the Pr°Pa;al the city 1 prove the peace, safety, health welfare, Coln- This may proceed as Proposed. e fort and convenience of it; residents.'_ andinclude conyome r Notice of the election shall be. given by _ grant rule -powers does not private or civil law govern- of general-circ publication once each lveek for four consecuiing 44" the power to-enact civil relationships, except as incldelrt to an Ing cive -the un in av newspaper eld` city.. The election shall he held '1 of an independent city poll. r.. (1'-91. 1075: th tion in the a day not les than five nor more than §664•-R00,§51047, lo56 1057.- 1011 1013.` -q-, §§680, r`0° 947 C13, on twenty .jags atter the last puhiication of 1 %. :_ �• -+ ,• C73,55454-956,-432, 524 - §G95; C24, 2/ 31 35, ?9M-_,-,14- t, 4 .67_0. C46, notice.h - for the granting, ''l� 50$5366.1, 3632' 420.31 C54,-58 rid 66.'71, 73, rl The ;x rson ..asking or renewal of a fran- ri :f; i_{I 15366.1, 3GS.2, 41-0.31; 64UA, ch 1034 F701 in dam• _ amending t>;tension, -- shall pa}- the costs incurred in holding t +. rrsx ..; e•r _ -'See 656.4. eh 1202.16 for temronn Drool+mnw re chile of:.ihe-notice. " <Yheelection. including the . costs finally elfeci(ve until >n ! Reny As, Hnla Amendment eReeure July 1. 1975 A franchise shall not be in writing has been filed with 3&,.Z Vesting of power. - an acceptance ° the council and payment of the costs_has been r 1 1. A power o[ a city is vested in the cit} provided by a made.'- may regulate the x- council except asotherwise C. The franchise ordinance _ the manner of use of state law. of aspecific. power °f conditions required and - public grounds of the city, and i 2. The enumeration does not limit or restrict .the general the streetsand _ it. may, for the: Purpose of providing electrical. - {�• ; r, a '' ` •' 1 a city grant of home rule. power conferred by the `A its general as, heating, or water. service, confer. the power condemn Private prop- ff r '.,"'' t �) Constitut[on. city may exercise -powers-Subject only tolimitations expressly to .appropriate :and _. erty upon the person. franchised.-_ [Cal 5604; Imposed by a state ar c{ty_law. ,. Sell 1090 1094,.10959 C73. -- REO,§§1041 IM - §' power is not ancon• 3.. An exercise of a city po -.__ §$111-456 411 023 524,_C9/ 11695• SI71.517, 1"16, C2 1. f-', sistent with a state latdunless it is irreconcil• 120-722. Ilr'71C• SI3.§§6957 1�0-1�2r -- 6, 5905-59M. 15904 able with the state law. - to any person a 27, 31, 35,§§5738,e590g' 5904-c�s04, 1, 90..;909, 6131-6134 - C39 1ar�� t 9. a.A. city may grant to erect, maintain, and operate Plants 6t R =' 6111 61x4 C4G 50,5§3631 3861-336.71 62 GG §§3682 336.1- r - franchise systems for-.electric light and 3�� 2. 1915-3'11 8 C 11 aS, 397.2. 391 � 397.5-397.8; C71, 73, ' and beating, telephone, telegraph, cable television, - bus. trolley 3SG.T' 388.-5-388,9, §§3632, 38G.1-356.7, 391.2, 3975-391 3; 646.4, ch " ,>C i j district telegraph and alarm, motor railWav or other public transit, 1033,511] Jab 1. 19,6': j bus, street waterworks, or gasworks, within the. citY for Home Rule Amendment eRecHre The following - a"term of not more: than twenty-five r ears. may be granted, amended, ex- 3GiS Llmitttion of powers limitations upon the powers of a city. t" 1r :. a The franchise -:. tended, or renewed only by an ordinance,'tilt - - granted, shall be g are 1 --p elty council shall .exercise a Power only - - a motion a resolution, an no exclusive franchise by the passage of sir amended extended or renevled amendment, or an ordinance 1 L: No such ordinance shall become effective s,-' city .:.a% "•°t Prv'-''' a +�'�"' "�- unless a ma7or.:c of he pernon;.v Dung therne _. _ - da}�a excess of a 0dimpd Imprisonment he svotube in mitted by the councilfon[t; onnalnotiontto excess of thirty t . { [ ..> > t r ) " ��" • aizu_./ ' _ ...+-.�-. r Jai - _. --CITIES-POKERS ANO -IICTI L�. All amount equal to exercising the power. [C66, 71, 73„3652: 64GA, violation of an ordinance. of fines collected by municipal ch LOSS,51Sj Rule Amendmeni e1Trc4ve July 1, 19:3 _ _ ten pe - corporations shall be remitted quarterly to the of the county in which the come :tnt.7 llisposal of property. A city may not [ county treasurer corporation is located for deposit -dispose of an in[ere-at in, real property by. sale, _ t C mUnicipal one - .in the. county, general fuller by a -percent lease fora "term of more than three years. with the foilou•- _. collected - btsndred of all fi�etes 1. or gift, except in accordance (collected City pursuant to section 3_i :='�.=uhsection -city. Ing -procedure• - - forth its - be: retained by the - - - 1. The council shall set proposal shall `3.'A citymay not ser standards and require. in - a resolution and shall -publish notice. as resolution and t menu which are lower or less stringent than set provided in section 362.3, of the of -a hearing - - those imposed by state .law, but may which are higher a date, time and place public on the.proposal.`- on ) standards and requirements - --- or More stringent than those imposed by slate law otherwise. -- 2. After the public hearing, the council may determination on the .proposal [.. ;. last•,, unless a -state provides make a final ;,-..-A city may not -let -y a.tax unless`speci• by:..resolution.- ficallyauthorized by. a.state late. (1160•$51071- 3. A city.. may not -dispose of real property 1 :_ -_1073, 1095; C73.5§482, 524; C97."668, 650, 9t7; 137-u; 1073,664 b - in except to a governmental body for a Y g 102. 513, CG - C2-1.':27. 31, 35. .9.:,•I(Rtt: ,-.t4. 50,§936:516. 3G6.1,.120.31: C51. 5S, frT $5360.1. public (C73.§LO p 6.883, §ln3r,.a47: C24`21.956'_05 (;206, GSSO..G602. 6738. .' C46, - 368A.1(lo), •120.31; C66, 71, 73,3§360.1, 363.2, 10SS.§12: 135GA, ch •: 6739.. C31,' 35,§§6205,'6206,.6580,-6602,: GG79-cl, 6 9.1, GW)..(Afi2,_66-9-1- 368A.1(lo),: 420.31; GIGA. ch 368A. 108i,§32, ch.1255,531 - - 6738.- 6739;-C39,§§(r205.. 6200. §3.90.6. 403.11. 403.12, 416.108.- -.673$ 673.9; C46,.50,§a - _,. See zI,o eonstitution,i Amendment 2 of 196e -Home Rule Amendment ureenve July 1. 19:5 - -416 131. 419.66, 420.49. 420.50• C.ii, 5$. 62. 613. 71. 3138.39, 390.6; 64GA,_Ch 108$.3161 i'roperty right: A city_ may: 73,§§368.35, U.me Rule Amendment effective July i. 19'5 <.ol - 364.4 1. Acquire, hold, and dispose Of property same manner as within- .16.1,8 Overpasses or underpasses. A city ,may by ordinance. require a ralhvay company Y outside the city In the :.2. By. contract: extend services to persons -.operating railway tracks: on or -across a: city or reconstruct, :�and main- S- outside thentrac - Enact and enforce ordinances relating to street -:to construct _ tain, an, overpass or underpass permit the 'street or under the tracks, and -F r- 3: "city; property and city -extended services out- 27, 31, to pass over 'may establish specifications for the construe- or side the city.-(SS15.§5741-d.-v41•g•,.C24, 3133.42; C50.§§3G•4.42. -tion or reconstruction of such -an overpass -- " 3g§ 71p.C16.§§gg8,41, ` 61GA,.ch subject to. following: - _-s 365S6CC54,53, fit, 136. 71,.73,§363.18; --:1. The requirement: may not be enforced {z 1085.§13] - '` -- - Home Rule Am.ndment elfectite July 1. 19'5 the specifications for a construction - NAS Joint action -league of municipalities. _approves - or reconstruction, after examinationanda- -determination the overpass or underpass C A city or aboard -established to administer a - of any. - of - its that Is necessary for public safety and convenience. _ - `city utility, In the -exercise act Jointly with any public or .--2• The council shall hold a .hearing, on the powers, may; private agency as provided in chapter 28E. matter and shall give not less than twenty hearing to the railway ' *The financial condition and the transac• days' notice of the , ed 1n the same man- eh . tions of the league of Iowa municipalities shall cities as companies Involved, ser -ner an original notice. y be audited 1n the same manner as -,,provided in section 11.15. - -. -: - as - - 3. A -_city may'.not: require overpasses or rallway company to j f _ �. - eat is unlawful it the league of --Iowa municipalities- to provide any form of aid to _ underpasses of the same - be constructed :closer than on every' fourth --parallel -a- to con -t :- or to the campaign of a Candi- street, norrequire.company of a political party -' date for: political or public office. Any: person - struct or ; -contribute to ,the construction `.' underpass. each E•, violating or being an accessory to a violation more than -. one overpass or. the of approach- of this section isguilty _of -_a .misdemeanor. thisC46, 50, year: nor require construction longer -than a totalofeight hunCccd feet IS13,§G94-c• C24. 27 31. 30. 39X5tiafi- 136• -.?3,934.43. 64GA. es for a: single overpass or underpass. - 1363.62- C54:-58._.62, -71, 1088,§14; 65GA, ch 10,9 ,§32, ch 1213,§§2, 31 - 4, A city, which'; requires -construction or ch rib Du,ar�op rllt••ctbe. July 1.. 19:5: 1353.(3• 13.1. FSGA, eh 1213shall reconstruction -of. an_ -overpay orunderpass�l c tr,3, rev,31-4 Jut) 1. 19,1. ,e< - e'•rhi,'D.r.Kr.Ph eifeetive July 1: 19.1. ,ee escA. th - .resulting damage to private property, and shall _ ' tn3.13 - - H.,me Rule Amendment Jolt/ 1, 19:3 - pay,thc dImages assessed all as. provided In - - s0t.r1 Proredure, ,It city shall eubstatil, . chapter 472, 5. q city shall pay one half of all regvfred comply with a procedure established by a If a maintenance costs, and may allocate costs surto law for exercising a city power. 1 emay-determine lies totbe crossed by arloverpasstorounderpasa,ire city o w- procedurewior 1 .. HAYEK, HAYEK & HAYEK AREA CODE 319 WILL J. HAYEK _ - .ATTORNEYS AT LAW 337-9606 JOHN W. HAYEK - 110 EAST. WASHINGTON STREET c PETER HAYEK _ IOWA CITY. IOWA 52240 -' October 17, 1975 The Honorable Mayor and City Council of Iowa City Civic Center -Iowa City, Iowa 52240 Re: Design Review of Development in Iowa City Mayor and Council Members: Sometime ago the City Council at the suggestion of the Design Review Committee requested -that the Legal Department report on the authority of the City of Iowa City to impose design controls on building and development in Iowa City. I am pleased to report to you that we - have completed our initial study on this matter. Mr.Paul Lauritzen, a law clerk in our office, has prepared a lengthy memorandum of law on this subject. Although this memorandum was intended for internal office use, it does contain a thorough discussion, I believe, of the legal points involved and I have therefore filed a copy of the memorandum with the City Clerk. Because of its length I am not sending copies of the memorandum to all members of the Council but would invite anyone interested to study the memo further at the Clerk's office. We are aware of no city in the state of Iowa that at the present time exercises any significant design control of building or development. There are no Iowa appellate court decisions supporting the power of cities or towns to exercise design control over development and indeed there are a few decisions -by the_Iowa Supreme Court rendered several years ago which would indicate that cities and towns do not have that authority. We believe, however, that the situation with respect to design controls has changed considerably in recent years. First of all, the Iowa Constitution has been amended to grant Iowa municipalities home rule. Secondly, the general attitude throughout the country with _respect to design controls and the importance of aesthetics in protecting and enhancing the public welfare has changed considerably. Mr. Laurit- zen cites in his memorandum decisions in two. neighboring states, The Honorable Mayor and October 17, 1975 +City Council of Iowa City 2 - Missouri and Wisconsin, supporting the proposition that municipalities have the authority to exercise design control over development in order to enhance the general welfare of the citizens of the community. While we do not believe that it is by any means certain that the Iowa Supreme Court would reverse its older position and allow design controls to be imposed upon development in a municipality, we do believe that the situation has changed sufficiently that a strong argument can be made for the legality of such controls and that the City would have a good chance of supporting such design controls in court. In order to be successful in that endeavor it is important that the ordinance or ordinances imposing design controls be carefully drafted. For example, it is important that the design control ordinance be related carefully to the City's comprehensiveplan. - The comprehensive plan could and should develop criteria and standards to be used in making aesthetic or design judgments in order to avoid the harm that would result from purely arbitrary or personal decisions about design. It is also important to recognize that any design control ordinance which we do adopt will not permit arbitrary or capricious decisions with respect to design. Any design review committee or board empowered to review building plans under such an ordinance would need to be given, as indicated, fairly specific instructions with respect to standards to be applied. - The exact nature of those standards and the exact outlines of the design review ordinance will need to be developed in conjunction,` it seems to me, with the development of the comprehensive plan and will require further work. I would suggest that the City Council discuss this general subject, at an informal meeting to determine whether or not the Council wishes this mattertobe pursued further. I£ the Council does wish a design review ordinance to be drafted, we can then proceed with that work in conjunction with the City staff. Respectful) subynitted, -2- these ordinances based "solely" on aesthetic considerations have either her,'more traditional, considerations to tacitly or otherwise, found ot underly the ordinance, eg. preservation of property values, preserva- tion of character of neighborhood, etc. The reasons for finding ordinances based solely on aesthetic considerations invalid are (1) that unlike health,- safety and_ morals, aesthetic considerations do not submit to reasonable definition but rather vary with variations in indi vidual tastes and culture; and (2) that there is not a close enough nexus between aesthetics and the police power. Thus the, Iowa Supreme Court in Stoner llcCra System v Des Moines 78 NW. 2d 843 (Iowa, 1956), while recognizing a trend toward basing regulations solely on aesthetic considerations, indicated that such considerations lack the necessity which justifies the exercise of the police, power. This attitude appears to be in decline. In Westfield Motors Sales Com an v_ Town of Westfield 324 A. 2d 113 (N. J. Super, 1974), the court held that: "Zoning solely for aesthetic purposes is an idea whose time has come; it is not outside the scope of the police power." At 119: The United States Supreme Court in Berman v. Parker 99 L. Ed. 27 (1954), dealing with condemnation and the Fifth Amendment, stated: "The concept of the public welfare is broad and inclusive [citation omitted]. The values it represents are spiritual as well as physical, aesthetic as well as monetary. It is within the power of the legislature to determine that 3_ - the community should be beautiful as well as healthy . . . ;... And in one of the better statements of the modern trend the Appellate Court of Michigan stated: [A] community's aesthetic well being can contribute to urban man's psychological and emotional stability. It is true that the question of what is beautiful and pleasing is for each individual to decide. We should begin to realize, however, that a visually satisfying city can stimulate an identity and pride which is the foundation for social responsibility and .citizenship. These are proper concerns of the general welfare. Sun Oil Company L._ City of Madison Heights 199 N. W. =2d 525, 529-(1972).- However, becuase of the Iowa Supreme Court's position expressed in Stoner, supra, basing a design review ordinance (hereinafter DRO) solely on aesthetic considerations would be a risky undertaking. Moreover, the objectives sought to be achieved by such an ordinance probably can be achieved, subject to the problems discussed in Part IV of this memo, by an ordinance based on aesthetic,together with other considerations. Therefore, this memo will deal with the validity of an ordinance so based, first setting forth some design review or architectural control schemes held valid in other_ jurisdictions (Part I); "next discussing the factors de- termining thr validity: statutory and constitutional authority for the ordinance (Part II) and delegation and vagueness considerations (Part III); finally, discussing some problems in achieving the desired objectives in Iowa City (Part IV). 4 Design Review Schemes in Other Jurisdictions sin upheld the validity of In 1955, the Supreme Court of Wiscon 129 of the Village of Fox Point, section one of which Ordinance No. provides as follows: ructure for which a No building permit for any st building permit is required shall be issued unless it has been found as a fact by the Building Board by at least a view of the site of the proposed majority vote, after a structure and an exam which shall incination of the lude exterioplication r elevations for a building p that the exterior architectural of the proposed structure, appeal and fu: ctional plan of the proposed structure will, when erected, I plso at variance with and functional plan of he structures either the ior architectural appeal already_ constructed or in the course of construction in the Immediate neighborhood or the character of the eneralable zoning district established by Ordinance No. 117 [the g ordinance ohVillage], or any 0 he eto, as to cause a substantial d prec aof or supplementary. tion in the property values in Said neighborhood within said applicabledistrict. The ordinance further provided that the Building Board consist of three residents of the Village, two of whom should be architects, and provide a method of appeal to the Village Board of Appeals. State ex rel. Sav�and °• Wier 69 N. W. Zd 217' cert. den, 350 U. S. Park Holding.Corporation 841 (1955). (See Appendix attached hereto). A Cleveland lIeights, Ohio, ordinance held valid by the Court urt of Appeal sof Ohio in Reid v, Architectural Board of Review,E• 2d 74 - 5 (1963) (See Appendix), required that the plans and specifications for any proposed building be referred to the Architectural Board of Review prior, to the issuing of the building permit.. Section 137. 05 of the Codified .Ordinances of Cleveland Heights, titled "Purpose" reads as follows: The purposes of the Architectural Board of Review are toprotectproperty on which buildings are constructed or altered, to maintain the high character of community development, and to protect real estate within this capitol city from impairment or destruction of _ value, by regulating according to proper architectural principals the design, use of materials, finished grade lines and orien- tation of all new buildings, hereinafter erected, and the moving, - alteration, improvement, repair,adding to or raising in whole or in part of all existing buildings, and said Board shall exercise its power and perform its for the accomplish- ment'of said purposes only. The Board was composed of three architects registered and authorized to practice architecture under Ohio law with ten years of general practice as such, and the ordinance provided for procedures 1% which any decision of the Board could be appealed. The Missouri Supreme Court has recently upheld the validity of the ordinance of the City of Ladue, Missouri, which setup an Architectural Board to approve plans and specifications for buildings and structures erected _ within the city to see that they "conform to certain minimum architectural standards of appearance and conformity with surrounding structures and that unsightly, grotesque and unsuitable structures detrimental to the stability and value and the welfare of surrounding property, structures 7 give the city such power? Iowa Code. 5364. 1 states: A city may, except as expressly limited by the Constitution, and if not inconsistent vwi� and plaws erform any General Assembly, exercise any p rve rights, function it deems appropriate to protect and prese - privileges, and ro ert of the cid or of its resi_ dam• and to presewe and i�r_ ove the peace, safety, heawelfare, lth, comfort, added) and convee ie� f its resit (emphasis ested It can be forcefully argued that an ordinance drafted as sugg to rotect and reserve the . property of _.above is "appropriate P P . the city and its residents, and to preserve and improve the . . welfare, comfort,;and convenience of its residents . . 11 However, one the view that several enabling statutes, commentator has expressed _cipal Zoning, which were intentionally retained including Chapter 414, Muni enacted in 1972, evidence rather than repealed when the City Code was -i-o o limit cities UIPOugh an intent by the legislature't the powerSgranted by us zoning restrictions set forth in §414.1. those statutes, eg. the vario Scheidler, "Implementation of Constitutional Home Rule in Iowa," 22 Drake L. R. 294(1973). Scheidler's argument is that any zoning e set out in §414. 1 may be "inconsistent restrictions other than thos ssembly", and therefore not authorized with the laws of the General A by §364. 1. It should be noted that the zoning enabling statutes under which the Wisconsin and Ohio ordinances were enacted containlanguage to the effect that those enabling statutes shall not absent from 414. 1; be deemed limitation of any power elsewhere granted. (See §62. 23(7), -$- of the Wisconsin Code and §713.14 of the Ohio Code in the Appendix). Although I can offer no good alternative explanation for the repeal of some enabling acts in 1972,- while others, specifically Chapter 414, were retained, I feel that the rules of construction set forth in §364. 2 of the Iowa Code yield a result favorable to Iowa City. Section 364. 2(2) states that "The enumeration of a specific power of a city does not limit or restrict the general grant of Home Rule power conferred by the Constitution. A city may exercise its general powers subject only to limitations expressly imposed by a state or city law. (emphasis added). And §364.2(3) states "An exercise of a city power is not inconsistent with a state law unless it is irreconcilable with the state law. If Moreover, Scheidler himself,- argues that in order to determine whether the legislature intends topre-empt city exercise of a power the test for determining Federal -State pre-emption should apply; in short, did the legislature intend to occupy the entire field of a given area of legislation? Clearly, the legislature has not attempted to pre-empt the city's exercise of zoning power. Zoning is a local rather than state-wide conern. It would appear, therefore, that §364.1 of the Iowa Code doers authorize the city to establish and empower a DRB as long as the Board's function can be sufficiently related to the police power via "public welfare". (See discussion, infra). However, due to the lack of cases construing s- §364, prudence would suggest an attempt to find additional authorization in Chapter 414 of the Iowa Code. Chapter 414 _ Section 414. 1 empowers municipalities to regulate and restrict . such structural details as building height, yard size, population density,-- etc. , but nowhere speaks of regulating design or appearance of the structure. An identical enabling statute in Missouri, Missouri Rev. Stat. §89. 020 (1969) was held not to "grant the city the right to impose upon the landowner aesthetic controls for buildings he chooses to erect. State ex rel. Magidson v. Henze, 342 S. W. 2d 261 (Mo. App. , 1961). Nine years later, however, the Missouri Supreme Court, upholding a Design Review Ordinance (See Part I, supra), held that the earlier court- should also have considered Missouri Rev. _Stat. §89. 040 which is'sub- stantially identical to Iowa Code §414. 3: Such regulations [of the erection, construction, reconstruction, alteration repair or use of buildings, structures or land, §414. shall be made in accordance with a comprehensive plan and designed to lessen con- gestion in the streets, to secure safety from fire, floods, _ panic, and other dangers; to promote health and theeg neral welfare; to provide adequate light and air; to prevent the - overcrowding of land; to avoid undue congestion of population; to facilitate the adequate provision of transportation, water, sewage, schools, parks and other public requirements. Such regulations shall be made with reasonable considerations, among other things, as to the character --- s of the area of the district and the peculiar uitability of such areas for particular uses, and with a view to conserving 10 - the value of the buildings, and encouraging the most appropriate use of land throughout such city or town. (emphasis added) The Wisconsin Court in Saveland, supra, based its validation of the Fox Point Ordinance on an enabling act virtually identical to those of-Iowa and Missouri. It is at least arguable, therefore, that §414.3 gives the city the power to enact the DRO regardless of any problems encountered by proceeding under Iowa Code '§364.1 supra. It must be remembered, however, that any action taken by the DRB will be invalid under either §364.1 or §414.3_if found not to be embraced by the police power. This problem is lessened by emphasized language in both sections, but the city _must be_conscious of this limitation in enacting the DRO. Clearly an ordinance aimed at protecting property values via architectural control `fits within the language of 5364. 1 and §414. 3 as well as within the police power. Saveland, Stoyanoff, Reid, supra, Preservation of historic areas has been consistently held to be within the police power, especially when tied to protection of tourist revenue.. City of New Orleans v. Levy, 64 So. 2d 798 (L.A., 1953); Santa Fe v. Gamble-Skogmo, Inc. 389 P. 2d 13 (N. TVI. , 1964). Similarly, protection of the character of a neighborhood is expressly mentioned in §414. 3 and was held to be a valid police power and zoning objective by the Iowa Supreme Court in Plaza Recreational Center v. Sioux City, 111 N. W. 2d 758 (1961). --11 - Finally the city need not conceal the fact that the DRO is based partly upon aesthetic considerations. The Iowa Supreme Court has twice indicated that: "Aesthetic considerations can be said to enter into the matter, as an auxiliary consideration where the zoning regulation has a reasonable relation to the safety, health, morals or general welfare of the community. Stoner, supra. at 78 N. W. 2d 848; see also Anderson v. Jester, 221 N.W. 354 (Iowa, 1928). [A J Good statement of purpose will spell out the relation between architectural control and public welfare by showing that the former will protect property values or serve some financial or commercial purpose. Such a statement may provide provide not only a hedge against judicial disapproval on the ground that the ordinance is not within the police power, - but it may aid the court in a search for standards that are sufficient. Anderson "Architectural -Controls" -,-12 Syracuse - L. R. 26, 44 (1960). III Delegation and Vagueness Because by their nature aesthetic values will vary -with personal` taste, one of the primary routes of attack upon DROs has been either that they are vague or provide insufficient standards for the DRB to employ. This fact increases the importance of drafting the ordinance in terms of protection of, or the effect upon property value:. Standards - are necessary not only to protect the Board from charges of arbitrary exercise of discretion, but also to provide the court with an understandable criteria for review. Valuation of property is an activity to which the courts are accustomed. Determination of visual offensiveness_ of a cases, supra. all survived attacks baseu on vagu�••��� standards. In Saveland, the Wisconsin court found the requirement that the Board determine whether the exterior architectural appeal of a riance with those already constructed proposed structure would be so at va ause a substantial depreciation "in the immediate neighborhood . . as to c in the property values of said neighborhood' to ovide sufficient standards pr In Stoyanoff, supra, requirements that the for the Board to employ. ation if it determines that the proposed Board "disapprove the applic nsightly, grotesque or unsuitable structure structure will constitute an u in appearance, detrimental to the welfare of surrounding property or v.trt hfjk residents . .1jto.-provide adequate standards and in Reid, supra, the requirement that the Board resolve questions of application of the I principles" and the fact that ordinance by applying "proper architectura all Board members were "highly trained experts in the field of architecture" were held by the court to provide sufficient standards to withstand charges of undue delegation and vague standards. It should be noted that all three of the above-mentioned ordinances as well as the Scottsdale ordinance (appendix) require that at least some fessional architects. I would strongly members of the DRB be pro recommend that at least a majority of Iowa City's DRB be architects, 14 grotesque to be at variance with the "character of the neighborhood" or likely to create a measurable decline in property values. To my some- what aesthetically insensitive mind, the remodeling done by the Best Steak House would not be sufficiently grotesque to be reasonably prohibited under the suggested ordinance.In Hankins v. Rockleigh, 55 N. J. Super. 132, 150 A. 2d 53 (1.959), the court ruled that the application to a plaintiff to a Burrough zoning ordinance regulating architectural design was an arbitrary denial of the Plaintiff's legitimate use of his property. Plaintiff sought a _ permit to construct a modern two-story flat -roofed' dwelling. The ordinance prohibited a modern flat roof such as Plaintiff's and provided that the architectural design of new and renovated structures be approved by a planning commission and that the design might be of an architectural style conforming with the existing residential architecture and rural surroundings of the Burrough. Although conceding that under present day zoning con- cepts, and in an appropriate factual setting, a zoning ordinance might properly bring into play aesthetic considerations in regulating the use of property, the court considered the present case as one in which such an appropriate factual setting did not exist, in relation to the proposed use of the Plaintiff's property and the particular municipal restrictions sought to be invoked against that use. The court emphasized that the community was extremely small in area, that half of the old style houses were already out of their original architectural design because of theaddition - 15 - d tensions, and that there were in existence a olmost as f flat-roofed ex architectural many structures of all kinds fully out of character with the inances as structures which restrictions for dwellings set forth in the ord complied with them, and that whatever new homes had been erected in Adding that the municipality in recent years had been of modern style. the foregoing considerations were particularly cogent in the relatively immediate vicinity of the Plaintiff's property, where there were several the court concluded the denial of the modern or flat-roofed buildings, permit for the Plaintiff's house had been clearly and palpably unreasonable in the light of actual physical development of the community. Insofar as d as authorization for the disapproval by the ordinances may be invoke hitectural style municipal officials of building plans contemplating an arc ity with the existing residential architecture, the court not in conform said, they are clearly unreasonable and arbitrary if applied to the plaintiff's property. The New Jersey Court's view is consistent with hich look more favorably upon ordinances the attitude of many courts w with aesthetic underpinnings which attempt to preserve something, eg. neighborhood character of-prope-rty values than those which attempt to sthetically pleasing result. See eg. , Mayor achieve by regulation an ae v_ Mano Swartz, Inc. , 299 A. 2d 828 and City Council of Baltimore (MD. 1973). My conclusion, however, is that it would be more advisable for _ • '"_yaw JYc ��rti'Y�u'.�AL.J4.7.S�.H+• .LYk 217 ttt�s STATE 7. WIEUa ND Cite as Go N-wo=j mi yn tt95. =0? - - propertv PARI: HOLD- tl a[tro person 'v Candi- - -: STATE ex ret. SAVELAND shall be CoRP., Re3Pondent, of taw',do not so:tat : s, c. ist-' • -ING -:- - u't:houtduc process V. indf: Poral in use Of. his property. as - nca s- - protect WtELAN7, Bui!a'.ng InsPceier a enable him to use it o detri :tent of so- 0 paste' - Donald G. :ctp, but individual m erect in conflict with Village Of Fox Point. APPellant. _ selling of the interest of society is subordinated to gait- is is I re- gupremr. Cour[ nt tSlscnnsln, - - - cram w•clB,rc. Const. art. 1, �' 13; U.S.C. y. - o-buc it . 1 -larch 5. t0;,:,.. - Const. Amend. 14. _ .Rchearirm Dcnicd lla:• a. 1n ,.5. Domain Co2(i) exempt. r _ _ - - proceeding for. :: it Of mandamus 3. Eminent of governmental was edu- .1 'ala buiidin. inspector Where Prosecution , dozen re- oxen re- commanding a permit to erect a rest- - functions necessitates _ takingOf private_ to issue to relator building on -re .or's premises in the propert} compensation.mnstU_ madctiicrc- as a liter- drnce of the -Circuit for, but i•ncident.' damages to property :O thou- Pillage. _ Froin, a jun' ment \Eilwankec County, Lco B.. Hart- res_ult`o` govcrntncntal activities Or : is`. the Court for Court zoning ordina ce passed to p:oinotfon of public welfare are 1 ley, J., d:•tla i village fc: isa nce Of a bush ir- a no: con idere. a taking of Property -.-_permit, r.9vir ng, b :ore Const. -a fi^.ding. b the budOing which eonpersat:on mu•� be W. our store. -Ing. • ' 6nard that thr(e�aerior architectural ippeal art. 1, ti 13. _ _ - t and functional plan o` the proposed. sink- taw (r81 _ ropert-and turc will not be 50 ?riincc with those 4. Constitutional in immn i�tc nc.^.h- power is not l-mrtcd to re;ii- , -:therefrom - G+nmastic - of other struCtires the -.-The Volice - --- •Yhc- health. substantial deprccia- lations desiencd to Promote p 129_R is. boyhood to cause uneon_titu- morals or safety, nor to suppression of what Episcopal tion in proper }-values.thereof and uoidlantf (`irce:ing issuance of a is oficn�ive, disorderly or uneani:an•, but aIf Madison, ;tonal . - - N. it, --ire inspector appealed. extends to dealing with. tri rig conditions _ p.ren-pro , t .cclfa:e - 11913D, r... a mit, Cur J o a •o b,hn: out Of them greatest _. ..ic, .. held that _,t - - Tfic up.c...� C - _ t 'e''""ec - Lw,ge:i:u. +•- cion=:i:atcd-a valitt cstr Ise - t + '•-• pro—O.­- pulls _. .the Oa.i rc p�,i„c .,� � e .: a -Bay, 122 of police po:rcr an:l was not so indefinite or general prosperity. :res exempt- ue or aiuUiy ins s -to subjcc:-applicants for -. -..; to the building board's un- 5. plunicipal Corporations are to _ -s in re.. -+peel - buildirg..rrmtts arbarary discretion or caprice.' Protection of pfOj+C l'[y_ Ca1pC5 t5 O1+JCC- i y or prier crntrolictl live o: tonin,, ordinance:within exercise reversed and cause remanded welfare, -poluc to axatfl i - Judgment. of power prornotegeneral with dircctiun>. ' u'heth r o dinancc is _ s �eG i duty Oi -} and it is u3-niatcnal -.I:-constitutional - grounded Soll'I.L on SUCK objective_Ot whCtn- the taw 0250 - cr such is Uut,mie of several Icgiti- :g himself -_ .: , purpose -.. The provisions of a:atc Constitution mate objccices thereof. -. - a:ute.'The that property !hall not be taken for public t, Oust)— main- } on use without just cc ,.en anion and of Four- 6 -municipal Corporations;«001(5) .. T -n as ectin_ i.5 tenth Amerct-..cr. to _deet} Constitution The values represented by -Public e•ci- Associa - that no person shall oc..�'eunced of prop crt; or which_ fare, for promot o - 3da _.Yalh th. without due process of law interpose no Ue exercised, s n ena cmc tlof z�hag ' University I barrier to exercise of -state's police.. power .may _- - ordinance, are aesthetic as well as mope- a e -meet its I to control indiv`,luale so as to pro- to - _conduct _ :ect welfare of co ru,nity: Const. art. 1, � tary. t = ai:hin the `- - - 1 - - _- --13; L'.S.C.:\.Cors t. :mend. 14. 7, pmunicipal Corporations 001(18) 2. Constitutional Law X278(1) The term `nciah`>orhood - as used is ol-fbitin- : -. -- The prov:sions Of 'state Constitution villas- -zoning ordinance p -.-permit u less ti,l c- -- that proper:}•.sl-all not be taken for public nuance of ;building thaprope Building -Board finds that exterior architee- $ . • without nisi compensation and of Four- m '.....,.�ti.4.^.T]Tee•...ar!�w.r.: �"'`' : ' :� �,r..-. TS..ntiYip�S?'r1►"!C _ :: - R, 2d SERIES ^13 Wis. 69 NOP.TH WESTERN power and was not so indefinite or ambi u- ` Sce. 1 of such ordiaan g 1 pn �licanisfor'.building lowst" - tural appeal and functional plan of proposed • structure -it•il1 not be so at variance with °ermits us as tto Board'sauncont: oiled arbitrary ••�O building,per-- those Of other .structures in.- immediate p titre for which a buil neighborhood as to cause substantial depre- discretion or caprice. titrequirf shall hc'is ted t - eiation in property �alties-thereof, extends y- _. ! found as a fact by 1 further than adjoining further property and i by -at least a main t }_ may vary according to existing conditions- Petition on relation of Saveland Park of the site of the p S Iloldin, Corporation ( a writ of referred and,anexaminatto•t o See Publication"SCords and Pbrnses, n for other Judicial constructions and deb- tows the "relator")`for a tent of mandamus ` papers for a`; build' a nations o[ "\einUborhoal"-. to command the defendaOt.Donald l e of { _shall include cote to. ,- .... - land, as building inspector; o: the village -of - 1 :, + proposed structu c . "g• h1unielpal Corporations p60i(7) Pox Point, to issue the relator a UmWing 1 architectural 'appen A village zoning ordinance, prohiUiting permit to erect a residence tiutWmg on its plan of the p oro e,` issuance of, building Permit,. unless village premises in Said village. vi -hen erected, net be, o :vas 1 Building Board finds that proposed stn�r .•fin alternative writ of mandamus `tithe the cxterrO ture's exterior architectural appeal and issued- and the return Of the deicndart - i ' 1 and functional ,cl"z c, _ functional plan will not be -so at variance thereto based his refusal to issue -the. per- S already constructed -O. construction in he ii - >vith those of other structures in immediate rc.mit upon village. zoning ordinance �o. i'_9• ' 1 boyhood or the enaraet .chick requires, is a condition precedent to j - neighborhood as to cause substantial dspnot permit- the Il ild--..b)c. Ltsiric::.cs aSl he - eiation in property values thereof. --- the -issuing of a building void merely Uccuts_e some discretion is nee- it Board of the villa,e to male a finrm,^ \o. iii [the cel -2- -t''- -f of. the siSlag j ° essarily accorded_ Board to determine lain- that the exterior architeGural appeal.- and amendatory- its ;C t - functional plan of the proPo=cd s ructu:c i_ , s its of neighborhood. thereto, as fo- cav will not be so at va iancc with those of o:hcr S • orations 0-111 l) siruetlliCS alrcad) COncVUGen, Or to the t pre in ton In c P °r -. 9. hwlelpal Corp _ _ course of constrortton, as to Cause a sub• '' neighborhood` kith Ml - The'Ord "subev.n.ial" i,t villa{� zoo _stantial depreciation in the property values LisnC:' ing ordinance prohil mg +ssu,ildiucc g Boabuilrd of -tlic neighborhood. - ing permit, unless till ge B_vlLirg Board Subsequent see Ga finis that proposed structures exterior ar n the e protide that :he Bullet Caland functional plan will A trial was had to the court Vp0• p silt of three res Sen s o;. chitccturai,iP� t not be so at van" those of Allier tilion and the return thereto lindcr date ' _ whom shall be archtt�•; struewres in immediate. neighborhood as of October 11, 1954, judgment was entered -method of app --to cause substantial depreciation in Property -adjudging that said ordina`hcch judgment i .Building Board 't'to f het; _t•alucs thereof, is - not so.indefinite astoto unconstiuttional'and void..- 1 the village. -; directed that -a percmptor, writ of man- renderordinance-void and unenforceable; := appeal t is e 'some---damus be issued commanding the Leier--dant On ii .,substantial". as adjecticc, meaning to i_ - application :or a by u:i thing worthwhile, as distinguished':_ from issue a building permit d relator. From such judgment compliance with all P ¢' something without value or merely nominal. mcnt �hlcd defendant building in- 1 eral zo•»-tg ordinance Or Sce publication Words nml i'hrases. SpcCtor has a1 p sole reason why the dei., for other.i�+•liciul constructimts and deft- ...Fraley N. R'cidner, Village :\tty., \fit- spcc.O refused to gr n' nada°, of "Substantial". Waukee, for. appellant. failure of the Bu•iding; - -_ for necessary finding presc 10. Municipal Corporations GSI II(t), 60117) _David V. Jennings, 'Jr., \fihvaukee, ordinance \o. I"9 as a; A village zoning ordinance prohibiting respondent. - per, If •+�,. issuance of _tY.e p issuance of .building permit, unless village _, - "The village of Fad Building Board finds that proposed_ strut- ±CIiRRIE, Justice- rated in village It eoner�. tures exterior 'architedu: al appeal and two and onc-ha qua" functional plan will not be so at variance The sole issue on this appeal is the con- _ j lire area has been zo..a'- -. - ----- with thoseOfOther stntctures in immediate - { only. There is, ho:ccvi neighborhood as to cause substantial de- _ `?��°ole of tFox Pooiint, adopted by t oMage - + district and a rclativcl_�" preciation in property values thereof, con- a my 23, 1945. ' stituted' valid exercise of village's police. board of said village on J s 7-7 210 STATE v. WIEI Aim Cite as C]�R d� d dist net permitting ehurchcS,`ao'` r lo-+. - municipal buildings,. but h_ t ambigu- Scc. 1 of such ordinance Provides as fol- voted :o_ r building lows:' of the territory m the village isd ••\o building-PCztt'it for any strut- - residence _purposes. -The tillage has dc- arbitrary-_ g y desirable_ rc iden:ial -- --- - permit is rc- v.eloped--into a hi hl' of single - .tore io: which a Will P-.• itis been _eillage,-almost entirely built up yuircd -hall be Issued umcsi _:.family residences. - found as a fact b. ;'ac- Building Eoard :and Park 1--.__by a:least a major-AY ay.�ote. atter a vie'•v The learned trial court held the ordinancethree proposed osed__structure, the iolloumg . r referred -o{ the-site of the I P--licalion unconstiiuiional on ,l:c app rounds (1) that the PzCGeTvation of p:oP- j mandamus and 1n examination of �rntit, which g itscli a Proper Oil G. \Vic- - Papers for a builuing P'. • values is not Uy police power _ r village of ' shall include exterior ele: anions of the city ordinance:'. ('-) that a Uuildin Ind functional in a zoning ' .naY the cStcrior tied for the erct'cisc of the P g i proposed `tructutc. - with I - -structure` will, the ordinance essentially is concerned 1,1111 .ing on its -_I architectural appeal aesthetics which also is nota proper , (plan of the Pro f"Ge'�.. - and(3) when erected, twLUc`o :d variance �i�h police po:ver. - :amus w-as n_crib,d m: the ordi- eiti:er the ex-criorazehi:cctural appeal - for eche standards he action 'I'd decision defendant ' and functional plan of tlic strums that governing P C h_ per- of the iiudunC- Boa d are. so mt'ifi ti:c. as COI i—ed=r;;i fTjc course. _z mance for it read —� licants for lii:ildm permus \o. ho -.. �ut�yction_in-:h medieyt e- ham to subject app _eedent to - boyhood or the thlrldcr of thea , ,lea- :he Build- t est aidi hcd by Ordinance to the unlimited and arbitrary discretion of a finning �o. [the general zoning ordinance such board. ?peal and _. the villxgc}.. or any-' ordinance (1_3] At the outset vac dcc-i it ��v isaUlc of _ -si",i unentary. to consider the basis in constitutional laic ' s:nuinre a;ncndatory-..lhcreof or „ - di- seoiothcr j ith.......-nt dc- ... valid iiy of zorm_. o- f the:eta, as to c1u c a for t:Phol itng the or in-the v values of said-nanecs, vv bleb, by titch vert nature. do im- - preeiation in tic P o c , diclbld o , of pile 1,c ti=c a sob--ncighUorhood u•iihin said lI P sc-res.ri_,inns upon the u opinion values - Property \V c. �juotc rain-ihc anle. P t the ordinance b' \Tr. }n nice 0aen m State �� 4 euhecquent sections q v•:Tiarper 1923,13' \\ is 11g hl 1'3 196the .Buil IvnC Board Sha .on the pc- - -provide that \.\V.4oi, 4;22;33 A.L.R. 269 as totlo cs: 7nder: date i - - 1 _ "The Constitution oi't11 hts s'•ite (Scc- luu•n of - sist f three resiucn is of is ""�� pruu�iuc a __. c entered .whom shall be arc ut c s. - -irt. 1) Proides th•nt the In OP 129 is met u o a pea _ Irm i t is <i.n�imi of ihc `` tion 13, shalt be taken. for Appeals of i person city of no P Ju compensation , judgment Building Board to the i.oard of APP public use tt'ithout j of man- the village.- - b the Fourteen*"' Amend- ; defendant +eel it is ccnecded thaErclator s therefor, and ; ,or. From I On this aPP ' l nsl ling pezi-ut disclosed - micnt of ihc'. federal Constitution pro- ,... application for rovisio s n: the gen- vides tUat no per-on shall be uepriced silding in- �iid the his Property without due process _ compliance with .all P _ wily the sub- defend-lot bung in- of law. These provisions •ire intended oral zoning ordinance of thdvill•t,-e, of Atty., >lil_ sole reason y crane Lite permit uvls the to secure, the enjoyment otoand ihc speetor refused to-:slantial and fundamental rights,do rived of ' - failure -of the 3uildtngc�be�dli°: me�el,lof allegation that one is being sensation -aukeq for necessary finding 1 - -his Property . orwfihouY.duc process oilaw calls for - ordinance \0. 129 x1 1 prerequisite to the - cit • ue lout Just O eom, otos; .serious consideration., it has issuance of the permit. - - .cr, that tf,cse The villageof L•oc Poi»t wasinmrpo- -:jot; -6 ccnsefllcd;.ho:. Conrtif:Ifie)ial pro✓ilia u-. ulSc rpose no rated in 1926• It consists mf s, and ;the cly 9 rercisc of.. fhe to Ice f.. `two and one-hall square miles, and the en- is oras said is the con- o eer of _the sfatc.-,Tt t q s t of the r -circ area has been zoned for residential use barrier. to -the ^c v-• Cu. rens. 111 mall Uusiness P rcl. Krlloz� only. -There is hotccccr, a _ in State c: the village y. - 1946. {Ft district and arclativclgsm111 institutional _ - -:; ' ,. - _ 220 Wis. 69 2iORTH WESTERN REPORTER, 2d SERIES Wise 431, 435, Si N.W. c61, c62 (56 L. i peals, in Vulfsohn'._v:: Burden, 1925, 241 The New Jcrsc_ R.A. 252), speaking of constitutional -N.Y. 288, 150 N.E.120, l=, 43-A.L.R. 651 i ; -'MC Chief. Justice - -limitations-upon legislative power: - - :- -. ; case of :Fischer ,, - "The [police] poker is not limited t _19 urr.J 194-.1 "'These limitations however, ac- to regulations desicncd to promote the validity 2of a' ..cording toall the authorities, state and - public health, public morals, or, public - 1 'Tura l.commumt S:; - :iedcral,-arc -to be read as not extend- safety, or to the; Suppression of what- ntinimum'of,fise' ing so far as to _deprive the states of is offensive, -disorderly,-.or-unsanitary, :., _ their potter to so costt;ol the conduct but extends to so dealing with condi- "• ! !' the, - - of individuals as to protectthewelfare _ ,; __ tions which exist as to bring outof- ample justifieat, of the community—a-poster commonly -, them the. greatest welfare of the people- preserving the' - described as the -"policeposter"."' - by promoting-� public -convenience or ' -: mumty ntauttaii ` • general prosperity!, crty thcrcin,ai - -in _ _. throughout thc'_ „ • As the e c t of socio--- - In the recent case of State ex rel. Wis. - appropriate us. ty justifies restraints upon, individual Lutheran 11. S. Conference v. Sinar, 1934; s: plied.) -, conduct, so also docs it j.:_:ify re- `. 267 Wis. 91, 95, 65 V,\\ 2d 43, 46, this court • - straints upon the use to which property -devoted. upheld theconstitutionalityx zoning or- In the earlier X. - may be it was nor intended dinanee of the city of \Fauu•atosa whicha•• City of Paters{ -.-_39 - - by these constitutional provisions - to - ' - - excluded private schools other ,ban private A.2d 231, 23''it rat p: o:ect the individual in the use - elementary - schools: - fro , - class - A" resi-. "The ., -- -a' his prones as to enable *,.:'.m -0 use - dente --districts, and --stated: - proper ` 'Conserving thr'. -. it to the detriment of soe c r. Ev thus - i • - " protecting mdta,du:d rico, society did - "We have recognized .that the term •includes encouraging the - - - - - - no: part with the power to protect it- - 'general welfare' considers- of tlfe land.' G self or to promote its general hell -be- ' -bons of Public convenience, an qen- 176 A. 676 679,= ing.... Where the interest of the hisih id- _... era] prosperity. • ' • -The. pres- : Mr. Edward Di ua! rorpfids :th the intrrest of so- ence of the school will lessen the tar- - i7 -.:article .entitled %- _.. ct tt; such iwfiz-tduel :Dent! fr sa.5_ :.-. _ cb!c -valnc of-: Twzrb ..o..._s-and-mal- " is Fu;poses all,, ii ordinated to the general t: elfare. If deter the building of new homes in the.: American" Bar 1: in the prosecution: of . governmental =- arca:' --_ (Emphasis Supplied.) _ - The author of sueli _ -=- tune -ions it becomes nece=saryto take '- mcud:cr of -the O private: property, compensation must However, other considerations in addi-._ \who had sen cd :fs - be made. But incidental-Jmunges..to - tion to the protection of -property values _..ci;y of Oakland is property res:dtiag from governmental - were also stressed in our opinion in State -. member of the. An, - activities, or laws passed in rite promo- ". ex rel. -Lutheran ]I: S. Conference a tnar, -Mute, Legal `Divi -, tion of the public.::clfare. are not can- -property supra, .to establish that the zoning restric- _ tains the -follows. sidered a. taking of -the for - tion therein upheld did promote the "gen-'(p,165)• +' - rthich confpensation rnmrt be made." - oral welfare". Cases :Tom other jurisdic- - (Emphasis supplied.) .� lions holding that preservation of property: - "On analysis t -- - - valuesarcthe lezitimate oNective a, zon-_ .toning are: foun, _ [4) Keeping in mind the foregoing_ ing ordinances is: Wulfsdtn'.v. Burden he Protection of.. - - principles, •sZ the. objective of an ordinance supe;- tate cx rel.-:Becry v. Houghton. "-•y as thc:protcn _ - in the nature of a zomng regu anon, u• ti-ich 1925,: 164 Minn:' 146, 203 N.W.-569, 54 -_ usefulness sceks`to protect or preserve property values, 11.L.R. 1012; aRirmcd 273 U.S. 67 1, 47 S.Ct surance of such:. emora--ted utthm- the term "-"cneral tvel- 4e,{, 71 L.Ld. 33Z; Rice v. Van Vranken' Pal grotvlh is t orf c -'?-It t—s_fhe contention of counsel for 1926, Mise:.S2,.Z29 L.Y.S,32 affirmed. ='c"t'on of -the ci' - - - relator that it is not. because such in ordi- 225-App.Div. 179, 232 V.Y.S. 505; Lien- ': `:rascal provision, nance does not send to promote public. shead Lakc, Inc. i-. Wayne.Township, 195'- '7.0ningresult. health, safety, ' or morals. We consider-' iON .J. 165, 89 A2d 693, 69S, appeal dis- rreciation of'tili - - this as entirely too restrictive an interpreta- missed January 19,:.1953 for want of sub-:- - A-11•,'flim- - r -�- parcclg -- ---- ---tion of the term "general welfare". As stantial--federal question 344 U.S. 919, 73 ,g •era; froma rend pointed out by the Nese York court of ap-' S.Ct. 356, 97 L.Ed. 703. 4nd usefulness cf ', {59s STATE :. WVIELAND 231• cite i\cw Jersey court, in an opinion by to the owner but to the eomaunity,-.is 1915, -241 2 1 The Vanderbilt, in the recent vitallyaffectedby the use made of the. r\.IM, -` Dir:-Chief-Justicc.: -of -v. Bedminster -Township, adjoining Parcel..: It is predicated upon ,. limited case Fischer I1 N.J. 194, 93 A.2,113i S. 3S4. upheld - abasic principle of urban land cconom- _ in at _ promote: 1993, -:'the-validity ofa zoning ordinance in ies, that a certain conformity use - of or public community restricting lot sizes to'a stabilizes and insures the value r.of-what- rural :- -of fits acres each, and declared: land.." _ -anitan•; - . minimum - „� x s there would. appear to be While the great weight of_authority holds _� i condi- t, - -ample justification for the ordinance in that the police power may he validly exer-t - e: ate of preserving the character of the tom--- - cised in'. the enactment of zoning ordinanc- people- munity, tnabriaining the .cite of prop- es having at_least as one oi_ their obicc- - cnce or thereat and dctroting-the land lives the preservation of Property values. _ --rrt%l throughout the ton•nship for most the'Michigan court in Elizabeth Lake Es- Wis. s rel. Wis. _its - _appropriate use."-_:. (Emphasis sup-, tates V. , Watcrford Township. 1947, .317 \.W.2d 753,x_792, held: that Sinai, 1ourt - plied) - - - - )licit. 3�9, 2G "the conservationof propertyvaluesis not -- _ 5. 'this - In the earlier New Jersey case of Griggs by -itself made a,proper sole: objective for _ - zonin-:or- - v. City, of Paterson, 1944, 133 N.J.L. 147, - the :exercise of Police power".in passing - tosa which 39 :\?d 231, 232, it zeas =raced:... upon a \Lchigan stunt e a .rho ,ztny .osn- •tan private _ - .....- - is ships -to adopt zonin" ordinances 'to Pro - ":\" . resi- "The proper purpatc of zoning 'Conserving the valueof property and mote. public sanitation, health. safety- and - general -welfare" -even though such statute - encouraging the most appropriate use also -.specified that "reasonable considera- ' the term f of the land.' Gabriel_ony Glen P.itige, bcrgiven, amon .hogs.. to.. :onsidera-- - - - 176:\.676. Gig, 13 \ T.>Iisc- 14_:' - tion** "conscrtation ofproperty values". - and gen- c pres- _. _,.. _-:. _ .- _ 'Mr. Edward D. Landels contributed an- :. - - We consider it significant that the �lichi- ..lir 1,2x-- lin: AAnalysis of - article entitled " iogn in the Eilirabetlt ..1 al.e astates - _rd -will . t - ;is Purposes and its Let•al sanctions" in 17 163. gnat court Case cited nn. authority other than its Quin, js in the; - t American Bar Association Jo:::::al - The o• su:h a:role was a prominent decisions in support of its conclusion. The _- author mcmLer of the 0aklaad, C:diforuia, bar, Particular ordinance msalidated_a ot.ded a s in addi- hadserved as special counsel for the an - minimum of cubic feet co•ttentsa_square who icer of - fluor arca for new dnelunes.:o: be .ty .values � - city of Oakland in_zonm^ cases. ,nd_was a Planning 7n- constructed in the zoned area, and the court 0n in' St:dc member of the Amcriew City ' out that this, in reality, had the of- x v. Sinar, stitutc, Legal Division. Such article con- pointed fect'of houses lbcing,crcrled := ; Testrie- - ,. tains the following pertinent statement prohibiting The court, n the "Fen- 1 (p. 165):. - --- - costing below a'certain _sum. therefore, could have grounded its decisionof wic- i "On analysis the primary objects of- on the narrooergsound that the ordinance property ive of zon- i zoning are found to be, not so notch - had: no reasonable relationship to the ob- j - - the protection of public health and safe- jeetive:of conserving property values, in- v. Burden, ty, as. theprotection of the value and stead of holding such objective improper. Houghton, \ 969 _94 {. - r : usefulness of urban land, and the. as- In the instant case it is not -urged that the f surancc of such orderliness in muniti- s had the ei: est effect before- um rt, 47 s.Ct. i . Pal growth as will facilitate the --ex- -- ordinance of requiring homes to be erected in _the vil- - z,Vranken, '' affirmed } - ecution of the city plan and the econ- 'age to have a in _ cost, nor do nye - tV5-1 'Lion-" omical provision of public services.- believe- such objection could be validly - •t-mp, 1932, [ "Zoning_ results ehicfly from an ap- raised against such ordinxaco.. The Eliza- - - - appeal dis- f preciation of the -'interdependence of. bothLake EstatesCasedecision is di.ectiv - an. t- of: sub- E - adjoining parcels of land' in urban een- - contrary to the we rea=soned opinion of Mr. .S. 919,:73 - ters;from a realization thatthe value Chief Justice Vanderbilt of the New Jersey and usefulness of each parcel, not only supreme court rendered in Lions:., quality r�-.".-'a.-.,mss— ��"'^1r: r..-�—+�enr^-.mow•:..?'-�_., - -+ - - - 222 _W is. - 69. NORTH :WESTERN REPORTER, 2d SERIES - - - --Inc, v. Rayne Township, supra, upholding ' court in Berman v. Parker, 1954, 34S U.S. I a township _zOnirg ordinance requiring 6, 75 S.Ct. 9S, 99 L.Ed. —, this develop- homes op- tion. Ave cot ..to_have a. minimum squarc footag of floor menE of thelawhas procccdcd to material, in space. _ ,the pointthat rendersit-extremciy:doubtful Policc,poace - -- -- - .. '[5] - 11rc have no difficulty in arriving at that such prior rule is any longer the law, - - tire general the conclusionCthat the protectio, �FTr�p, In Berman v. _Parker the united States We now c i - (--rric-r i»eh faUa-+xixa— P su rcme-court hadbefore it -the question -of '+=•..u-hethe :'meta beth in the cscrctsc of the notice poavcr to pro- "ec-icral the constitutionality of an Act of Congress _ the mg of the Bi .[Rote the aveltarc" and that it is ' - Providing for slum clearance in the Dis- •o of to immaterial Whether • s .}t�iy1in ordinance is trice of: Columbia under -.which appellants' - '. -grown a solely ur-on such obicetirc-or th�Proper:y--aaas included within the bound- 1 building pert of such boar such pur osc i5-but_onc--oLse-"raLlcgiti_ ---Ln3t�nbjaetisxs._Auything ants of the d•strict to.-bc condemned for ordinance-sp that -tends: to slum_ clearance .purposes, although it was peal -from t destroy, property. values of the inhabitants used for store purposes andin no sense tore- - i of the village necessarily adversely af- - stituted slum housing. Appellants urged - _. Board to the of course, tin fee the prosperity, and therefore the gen--: - that the -act, insofar as it -permitted_. its - `viii always - veal vcliarc, of the ernrevillagc� Just be- cause, property. to be taken for suchpurpose, Soard of Aj in the particular case noaa•,uefore us,. could not be justified under :he police pow. - property values in a limited area only of ..cr, titwasin violation of the"due proc- In, order:f _.-. the village are at stake does not mean 'that .,css".-clause of the-Fifthamendment:- The --- refusedundei such threatened depreciation of property -docs court in a unanimous opinion by Mr. Jus- Board must: I values not affect the general welfare Lice Douglas declared, 75 S.Ct. atpagestcrior arehitc Of the village as axhole.: IE-rcL-rtor is 102, 103: - posed plan of Permitted to erect a davelling house on its -land of such nature is to substantiaily dc- '•The of the •+uh ;r wet-,- - r not ,ures alreadv_� _ preeiate the value of surrounding property, is broad and inclusive. See Day -Brite of constructio; [herr a ii:atyer that this sante thug may. Lighting , Inc. V. State 'of. Missouri, X42 U.S. 421, 424, 72 S.Ct. 405, 407,-96 boyhood" he rcpt•[ cd _clscnhcrc-within the tillage, L.Ed.-.469. The��•tlucsit-7cnrescnts - stantial_deprcci _. tit -us threatening property values through. - I -are'spiriutal of said nrfghbi - -out tile village. a"c as ai , -PhY`c-•L-der_ ihc: Ordinance ,i _ U�rtir as well RJ llfaltrtart'.` I[ 25 within- as beine�nost - [6) The learned trial court held that -:...the poavcr of thelegislatureto deter- -_.... po•it.of7mdefh - . the Objective of the ordinance isgrounded-._ .mine -that ',he Community -should be.. and-substantic largely- upon aesthetic considerations, wiricit beautiful as well as health, s - ) - arc ivsi:fliciart to ire<_tify the crcrcise of as well as don, dwell -balanced as well -- - [�]' wifilc ,. the policethe- -- P -Power. R•hilc .ordinance as carefully patrolled. - In the present -.and _ - a`'hich courts In docs use :he, term "architectural appeal-', a - Case tile Congress its authorized - .. - 6nethe-term" ,.. , -. ._- - uildin� ermit-is only authorized to be agencies < have made determinations' _ _..-. `"•he dedson of t withheld in those cases avhere the trchi- .that take into account a �a•idc as:ie:a•I t �niar RsPid<; is tectum appeal of the proposed strutturc is °f values, it is not for, us to reappraise ,t51 as being th 1.the rarianee avtth that of structures al-- them. If those :cho go✓erii lire District involved tat. --- re`adv-: constructed, or bcin� constnmted,- of Columbia decide that the Nation' s -- tion. and.:compl: .. - as -to cause a substantial deprecation m -capital should be beautiful as ::veil as - " ;Kllant land obit the - proncrty values' in the immediate sanftary,_.there is nothing in th,. Fifth: ;1*- iuttedCto its - - neighborhood.- This court Pointed out in -. ; incndnic» t that. stands is tire ; ay." ;a-nds which Ace. -Jefferson County -v. Timmel, 1952,261 Ris.: (Emphasis supplied.) - - roi be Iota• _ `cd -.i' 39, Gi, 51 \*.1\'.2d 51S, that while the gen- -: - _ While the court in. Berman v. Parker, -",-OPerty- being-'. emir[, ' cral. rule is that the zoning power may not - supra, - _was dealing with the "due _ in its °Pii trt • process" be exercised for aesthetic consider- clause of the Fifth amendment, which -re-d:astratiO_n`,•`shou y to beused,l ations, such rule was undergoing develop--stricts the power: of Congress, and it is the ood " "': h 'so - .went In view of :he latest word spoken on "due - -^..by process" clause- of the Fourtecr:h .'.. or re. i'.cstion that 1:nel the United States supreme --amendment which is applicable to state ac of its value;, will sraxs SCIEI AIv'7) 223 _Cut as Ct S.w cd 21. • %S L1 S. tion, ive consider such distinction to be im- aid to the intelligent and fair-minded juror develop- -material in considering the scope. of the :in estimating the value of the lat er". It ' :o the . police power and its cxercise to promote- then � proceeded to define "reiyhborhood", d doubtful= -the general welfare. r and stated`: - - the lana W;e now come to the last issue presented, "The term 'neighborhood' is one of - d Sates- rile., whether.- the :standards- het' by ordi- -- quite indefinite -meaning, -and it may s:ionoi .Hance �o. 129 forgoce..mn` the :unction- well be that in some cases the trial �ongress in; of the Building Board of the vliage are court will permit the inquiry to cake a :he Dis sv indefinite as to subject applicants for - wider territorial range than it could building permits to thearbi arbitrary discretion allow in others. Certainly ,this court pcllants' bug hat the cannot bound- ldin board. It will be recalled attempt to fix a standard of - . Heil for - -- o:d•.nanee speeifieaily Prides for an ap- measurement, and sap as a_ ma: ser or. At was _ peal from the decision of the Building law .that the similar p:roper•t con- msc con Board to the village Board of Appeal-. •uh r coning w-hich,.inquiry may,: be made: is urged- - -of course, timely court reties n}'.certiorari - is such only as may be found ttith- hitted:"its will ahcays:lic from the decision of the in a given number of feet, yards, or purpose;; '.Board of Appeals. _ blocks of the property.. --condemned. _ - .tce pose,'- - Counsel for appellant argues, in cf--- _Ia order for a luildinz permit to be - :ae,proe ice:, that, as the word as: been used refused under the ordinntt t Fuse,; in cases of this class, 'neighborhood' .:.t. TheBoard mus: find, as a a that the : ex - \(r. Jus- - and the -o- - has reference only to adjoining prop '- terior: architectural apnea• p' erty, but we think this cannot be. at pages posed plan of strnciure wl cu en cted shall _ - tion -it -tai: -the The rcaso ald�pcnposi - not ho be so at variance tutu t se of stn:c trial court is vested w'i h_di-erttion-to - tures already -e construct o: in the course. ---- - .celfare - - - draw the linein each- case as shall- 7 -Brite - of con-tructioi in the i:nmyu+:t:. re.,h seem just -under all the circumstances Sorhoar' "'as to-rtusc a' nib- - ssoun,.;- - decclopca nt_the_t.es.umas,-ancLthat.,- 47 1 - r;m .f de, rcr t nn in - i f opera .-lues - unless aLusc of 'sucih (liscrruon is, resents of - Sala nefyifbtn"i"f". ?i two s�.rds or Shown, its rum wi no[ - 11, acs- ` the ord+n..nce wl:.th hair tt n singled out t.ersib c error." g . Within i -as being t^o [ o1,jec ionabie from fie S:a:hd -- fdeer ` ?'�•.•• o. t..e.e5m e•ius enc "u: ighbarhood"-: -- While the court_. in Youtzy v. Cedar ad be i and n:b---supra, was - - - "nciGhhorhood''_as used in:_a rule ofthe p a [7] \While severalcases are cited in common law, instead of -_statute or ordi- well _ uhieh courts have been cal:ed upon to de-' fiance, we consider the foregoing quotation `? present - -- horzed:'- fine the term "ntighborlmod•' %ve consider equally applicable to its use in the instant ; iaations at decision of the low., coot in 1ou.zv `:-case in. ordinance -No. 12).: Cf early. sleigh va11.onsnlety Cedar Rapids 1911 ".1=n. n;�-- i• t'9 N•�� • borhood", as used in the ordinance does es-, ppraisc -351, as tieing_ he -...os helpful. That ease :end�urthcr than adjoining: prop_rty and : Dutrid involved the tal.mgby_of and bconlemna- i • a v rs according_to-existing-cotta Llwls.' Valiant tion, and complaint was mi' • by the till- I or example, in a'section of the village ail 's ".I<llant land owner that w -messes had been where the average building lot comprises ..j P!c Fifth ermitted to testify as to sale prices of S-everal acres, the .limits of .the neighbor- - ,y -lands which were so ar ^Decd as to hood might w•ellbe -held to extend farther .lay.': `. not be located in theneighborhood of the than'in -the cast of an area in the village property being condemned. The :Iowa where -building -Jots average. less: than an ,-at . Parker, court, in its opinion, conceded that prop-: acre each in area. = ?i e process" I eay_to be used by way of compiraon or which re. illustration "should in the same neigh - Although it is impossible for this court;3 d it is the S borhood or so. hcarly similar to. the one in in this decision to establish, in terms.. of ; ourteenth -question that knowledge of the former, and measurement of feet, the radius of the IarC- - 77 o state ac- `i of its value, will afford some degrec of est permissible area which would ..qualify ;-i 224 LCIS. 60 NORTH WESTEP.N REPORTER, 2d SERIES i as aneighborhood under the ordinance, Krause's Eclate, 1933 173 Wash. 1 21 P2,I .G9 Wis.- a_31 :here is, undoubtedly in each .case a point 263, 270, held tha[_tJy`LCfin "snbstmntia(it" Sylvester FELS,- beyond which a court could hold, as a mat-:.-N,•as - not so indefinite as to render a Cori- ter of law, that certain property was not in;,- tract cmplovmg it to be uncnforccabl • The the same neighborhood as applicant's prop- particular' contract provided'':'neither-par. 1 '- INDUSTRIAL Comm I' erty, and that it . would be an abuse of dis- - tv shall have the, right to make a' new will - Neon ah-hlenashia' _ - eretion if the Building Board determined as to. property. which has pursuant - here- corporait_on, et al:' - otherwise. In case of a court. review some to been substantially benefited by the other ; Su reme Cour �• p effect necessarily would have to be accord- party' ", with respect 'to which the court '! - 1 a' ed the adjective "imnnrrfiatc" fireceding the stated:_- - ! `- March c'.; word "neighborhood" where the latter first IIcbenring Dented' -- appears in the ordinance. -. "'Substantial'. as an adjective means __ Action by dump L.:c' something worthwhile as distinguished - - [8] Just because some discretion is nee- fromsomething- without value, or r order of Indust i 1 G -. essarily accorded the board to determine -the merely nominal." - -.' f workmen's eompea_--.c-; cciced whileengaged in r - limits of aneighborhood, as applied to. This -court is frequently:. required to + `The Circuit Court for:D€ a particular applicant's property, docs not -apply the wording of section 227.20(l) (d), C. Reis, Circuit judge,:re. . render the ordinance void.. City of Mil- Stats_ "unsupported by substantialevidence setting order aside, and or uaukec.v. Rvp!in>;cr,- 1914, iaS Wis. 391. in v: Oftheentire record;.-in `cases in. -- ance carrier appealed. i 145 N.W. 42, acrd Pinkerton v. L'ucch, 1921, volving review of determinations by admin- ' Martin, J., held &.at whe n - 17.3. Wis. 433, IRI N.\\'. 12 . In the first istrative agencies under our uniform Ad- er• who had contracted .mentioned of said two cases, this court up- ..ministrative-Procedure Act.. We_-do not - - --haul gravel at so much p,: held an ordinance of the plaintiff city which -recall of am• litigant even haying .raised had agreed to be re.pon-i@ proliibitcd anyonc front carrying on a junk ' - 1 - the question that word-"substantial' truck, notified checker eu ' - shop it, the city without a license, andfur- therein rendered such quoted portion of. the that truck needed repair. a: -thcr provided [1cS\\"is.391, 145 N.1\'. 43].-- -. statute indefini;c.znd void. -- '- -._ -- .-. scnue:station .where an:c all applications for license: under this ordinance shall be made to the mavor who -- - - - D`tcrmim:g whether or not a proposed "substa•uirl(v" - for truck repairs, and w thereafter whue wnr� ng c m- t O Cft:sc -O y grant 1.a such IICC:ISC structure Will depreciate P.I L': Cd while petiOrmlt! iC - -as to him may seem best for tiro good order-. Property values in the arca `is simply ,the _ out of and itieident to his' of the city'". Thecourt held the ordi- of the common question that must- : -- ,-reverse nancc ranting to the mayor the power to be answered in *tire assessing'of b refits re- Judgment afstrmed.' _ -grant orrefu a lice.: es "'as to hum ,toy`- sultirg front a Public improvement in ley}- _ I. Workmen's Com-easatlar -seen best for the good ardor of thecity -ung_-aspcclal asscssmcnt against thebcn- : set a sufficiently ucffnite standard, and held ,efitcd property. There the question must be Deierminatioa-.cr_thr, - the ordinance constitutional. - In -the fink- determined w•httlier_or not the to - - I b!ie-nm- - Ptitcd facts employee p "' - _ plo •cc a e£:. crton Case the constitutionality of a statute prevenient benefits property and if `so what ' - growing out of or incident: providing for the licensin"-of P e r private dc- property and to what extent. --- -: ment requires application - . .tcC.ires was upheld which required the tip- _ _ , acts, and is conclusion or S . - proval of the application by the fire and 10 It is our considered [ ] judgment that 1cct to review by eon^,. ' -_ _ police eommiesion of the city and a finding-. ordinance No. 12'9-constitutes: a valid ex- 2. Workmen's Compensation'_ - by the sccrcaryroi state that the apple-,: crcisc of the police power of the village of cant was -"of .good character, competency -- Pox Point, arid-its provisions are not. so -- ° The :Workmen's Co-i-�'-- and integrity:" indefinite or ambiguous as to subject apt ,,. truce - Must y e' liberall • cons - - plicants for building, permits to the uncon- ;- `�rvicdthat can be reas - - `trolled - - [9] Turning non- to the word"s:fbstmt- 'arbitrary discretion or, caprice of - � within it -' - - Tia! which-has also barn attacked by vela- - the Building Board. -- - ] 1 - = Workmen's for as being too indefinite, we find that the. - Judgment reversed and cause remanded Compensation' - - Washington —supreme court in In re with directions to quash the proceedings. Mere dump truck o . con traeted'w•ith gravel eco - - - gravel at so h mucper t d' -agreed to be responsible for ,- rotified checker during;woz -truck needed repair, and thea' 69 S.Ly.2d-15 -: , - i • _ • •.aur_ r I i ((7 61.33 MUNICiPALITiES Tit. 8 Ch. 61 " 1 _. attain grea - Notes ofDecisions ' - appointive-, Construction with other sections I - Ciihice truct oe appointed Ly villncl' ' Duty of district attorney 5 board to suis tiul,ud huildin., of village.:.(3) .At Fraud 4 hulhiings it $ leer illy: for uch services Offenses 2 :vinlates thic .section.- '1910..071.-\tty.Gen, acquire pl'C -.,. Void contract 3 --570. _paries, libl tvatent ork: 3. Vold contract Where the president Ot a tilinge Is courses pt. Library. references -directly or Indirectly Interested d In n cot- public pini: - - Ninuicip.d Cori ,rut ins C= 41!71 trier for the ,Ile of prop rlt bs the own, lease- ?Innfelpal Corporation; ¢ p>B. vbila•_e.. Lt violation of. bt.1:123. ¢;,.b1.1i. - ,.. I'eereatlOn - (. 45,19. tile -transaction-, Is: void. , Ityan v. _ - - 1. Construction .with other sections 01soti 119-4)101--5.\t.-727.184 Wis. 390. convey SUG __-..Section 61.411 prescribine a furfrit:re --- .. $2.'.` ,.-.. -forvillace tntst•es intar,-wt--int I,,n- 4• _Fraud- - `. ' - - - tracts of rill la+ and $ 3IS:11� prohtbif im, ' - A village president's Interest in It con- - '\ - ! - - villa.•,, 11mrs frau i.•iuc Inu•r,,t•d in ,veyance: of land by. the lrustecs:_at a _(Q) for the col, mutrnr-t, ,f ti111_e..:wd.In. criiliu a _art sly Inadegnmte ';!nice constitute if - .. tax orspe. I1cnalty by way of title or t.npri>onnu nt. fraud. for which taxpayer, fire prop• are in e•,n:nct but ,nt.ln,a Fie til h. r :__ ern_ has been trand,rml town innocent. - - - -that: the'4 - 37o.fr1, pravidinz that-. if 1 cividn. of purely l rr. _semi recbrer. -d tin l •es- frons Village I1nE _ differenr Ompt r+ i Vnlirt with enrh ah- -,uch ollil or, lit it suit to n -rind the mi- district I& cnlpLdnt also prays - er prnvi>ions of (,sell chapter -hall. pre- =-v.1}ane...-evthtre theo - van :IS to di nnaller> 1111.1 questions for smelt- further relh-f its -tile court such distlii grolalnc`out-of nlll•+-t nettler of such de+w just mud (quit:161(, ,Ill m V. OI- thel'eOf, illi 1 i� .-h Ipter. S 01 \In tlen o !19191. eon f11 11 VI \ \\ 7, IS3 itis, - village ac i _2. Offenses -5. Duty of district attorney made to cx Cud. r , C.1.33. t 1111¢, trn t r 'ilia tails it %v;15 the Note of district attorney to making the 111 stew All JJ••o:of .e rl Iran n furni tau_ bon Icton-tl toner f)rfoiWRa .n- - -' reeep iis feu Jicht and poo. r to s ill t 1 w erre -, of torr d runlet �t i t 1, g 111.53. 11 Up. �. _ _ :nnnnnt y^'cdlld In :aid .eetolk hl any ,tri} t.en. 351 (1912).schools ,ani .:loan one year cc:,, liable to !,••maty hill - shall 'b -bn mil section. 13 UP•.\t1y.Gen. _'.4. �. • - ll.l_:n. .... :. (a) Cil sages the L' 1 61.34 Powers of village board spirit of t: (1) General grant. Except as otherwise provided by late, the declared Al '. villageboardshall have the management and control of the village rights, pot', property, finances, highways, streets, navigable .caters, and the public fare,peace -, service, and shall have potter to act for the government and good order ants herci of the tillage, for its commercial benefit and for the health, safety, welfare and convenience of the public, anti may carry its powers into effect by license, regulation, suppression, borrowing, taxation, special -Article -11. ". assessment, appropriation, floc, imprisonment, and other necessary or OrCat11ZM7 7111 IMlsccrc+l to'., convenient means. The powers hereby conferred shall he in addition andgovernnr to all other grants and shall be limited only by express language. =� -- (2) Co-operation \\'7th other municipalities. The villa- board, :+ in behalf of the village. may join with other villages or cities in a co- Source: -- for executingany potter or duty in order to sL1➢33 operative arrangement - g cls 44, , .8 i Ch. 61 VILLAGES 61.36 eof - 30. Gambling - 31. Navigable waters - - `l u ! - •lite cities and cillaces may: by. ordi- :The le¢is)ature lies not deleeated to - -- d it ` nance.. prohibit slot inachinov and pin tonus, cities• and vinaces.tite power to Ido-h -.. alf causes � potential gambling devices. charcc-n fee for the use of uacicable cca-. n - -- Ate -.6 Op.mly.Gen.:aq:j (tp:17). tors within their boundaries. _.da Op. -- ' not AtgtGeu. 23 nal 61.35 Village planning The provisions of section 62.23 shall apply to villages, and the tee• powers and duties conferrLd and imposed by said section upon mayors, not councils and specified city officials are hereby conferred upon presi- -'37 dents, village hoards, anti villageofficials performing duties similar to the duties of such specified city officials. respectively. Any ordi- nance or resolution heretofore passed by any tillage board under the provisions: of section 61.35 shall be and remail; in full force ,ee .. - and effect until repealed or amended by such village board; in case r'r the village has no official paper. notices of public hearings specifiers in section 62.23 shall be posted in 3 public places in said village the ,,,. _ i number of days specifier) in the respective subsections of said section t"t ; 62.23 prior to the date of the required hearing. History and. Source. of Law ... t Source: W925 L.1fto, L.1011 C. ^_9Z. - ( c. c lt,l.:.:3. 1..1!� p C. 17S. .._ GA Cross References i City pinnnbtg. sce I f.6.23. r t Notes of Decisions Library references._ _ 1. In general 1 y ' __. est- Municipal .,t orpnrntdotw C=I?2, iSg- l\ here a sill i e tsae divided into rest- 1119" n , .010). WIT. 6121. t,_.,. lential nud im inr s districtsin purnn- - I t t QI v- Municipal Corporations 11 221- ance of St.l 119._S hl.a:, the villnue Is lin- '- ; l -6.. - We fordant tg s to -property from puttiuc I _ -It into n residential district:.. 1 era r•. \•illa¢e of Shorewood (10^2) q l 61.36 Streets, sidewalks, sewers and watercoilrses - ` The village board may lay out, open, change, widen or extend roads, streets, alleys, sanitary and storm sewers, parks and rather ' Public grounds, and improve.. repair or discontinue the same or any i part thereof, including lighting and tree planting -and may establish ' # and open and constniet drains; canals or sewers and alter, widen or straighten watercourses; may build, alter, _repair or otherwise im- prove or vacate or discontinue sidewalks and crosswalks; and may 53 1 Tit. 8 Ch. 62 62.23 DCUNICiPALITIES (b) Di map. No permit for the erection of any building shall be issued divide the unless a street, highway or parkway giving access to such proposed be deemed stricture has-been duly Pia^veil on tho ofrcial map• «here ihc_en- ttithin sud' forcement of the 'provisions of this section :tt would entail practical sttvction; I. and where the circumstances of = ]and.: All ,<_' difficulty or unnecessary hardship, buildings a the case do not require the structure to be related to existing or pro- builds t s a: posed streets, highways or parkuays, the applicant for such aper- ati ns mit may appeal from the decision of the administrative aflicer hav- ing charge of the issue of permits to the board of aPPeals in all' -city ancc «rth which has established a board having PONVe'. to male variances or the streets: exceptions in zoning regulations, and the same Provisions are applied promote h to such appeals and to such boards as are Provided in cases of appeals and _air; tc on zoning regulations. The board may in Passing on such appeal centration make any reasonable exception, and issue the Permit'subject to con- transport dilions that will Protect any future street, highway or parkway lay- quirements: out. .Any such decision shall be subjdct to review bycertiorari issued sideration, by a court of record in the same manner and pursuant to the same its. pecu)ias; serving the' provisions as in appeals from the decision of such board upon zoo- ing regulations. Inanycity in which there is no such board of use of land appeals -the city council shall have tilesamepowers and be subject (d) ,lle to the same restrictions, and the same method,of court review shall public lsa s he avail' For such purpose such council is authotized to act as a mittee of discretionary administrative of quasi judicial ids in la separatmmeeen ung and t the district it sliall not sit as a legislative body, tions shall f with -separate minutes kept. it thereon by, erates lieu -them ` (h) In those counties where the county maintains and oP r parks, parkways; playgrounds, bathing bsaches and other recreational i council mav_ i the citypla; facilities within the limits of any city, such city shall not include said 1 report" facilities in the master plan without the approval of the county board adopted, tip; Of supctvisors. i official pap i �7) Zoning: (a) Grant of potter. For the purpose, prompt proposed ch person intci ing health, safety, morals or the general vvelfs tri of the community, _ 1 the council may by ordinance regulate and restrict Ute height, num- such change ber of stories and size of buildings and other structures, percent- cent or moi age o[ lot that may be -occupied, the size of yards, courts and other 1 posed chane: open spaces, the density of population, and the location and use of I fvhJ of the lams;. by the O%nt buildings, structures and land for trade,indusuy 'residence or oUI �� L urpose_ provided that there s tall a no discrimination against tent t i _i, thereto exte UI'�Uani land, -such porar. structures- This subsection and any ordinance,oated resoprtton or C� Gy ' able vote of ren ]ation, heretofore or hereafter enacted Or adopted (e) Bo' thereto, shall be liberally, construed in favor of thg city -and as mini - t illations Pur, mum requirements adopted Cor the PurPoses stated: It shall not be deemed limitation of any Power dsevehclre grants N ' Ch. 62 CITIES, GENERAL CHARTER LAW 62.23 1 (b) Districts. For any and all of said purposes the council may 1 divide the city into districts of such number, shape, and area as may be deemed best suited to carryout the purposes of this section; and within such districts it may regulate and restrict the erection, con- I stiuction, reconstruction, alteration or use of buiidines, structures or f -land. All such regulations shall be uniform for each class or kind of -- -buildings and for the use of land throughout each district, but the ! regulations in onedistrictmay differ from those in other districts.;., (c) P1117tosas in Victor. Such regulations shall'be made in accord- ante with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; 20 LJ promote health and the general welfare to provide adequate light and air; to prevent the overcrowding of land; to avoid undue con- cenlration: of population; - to facilitate the adequate provision - of 1 transportation, water, sewerage, schools, parks and other public re- quirements. Such regulations shall be made with reasonable con- sideration, among other things, of the character of the district an its peculiar suitability for particular uses an +wt t a ere serving the value o uu mgs an encouraging the most appropriate use o land rou- c I ty. (d) illetltod of hra cdure. The city plan commission, or board of public land commissioners, or - if the city has neither, a cit.= plan end mittee of the council, shall, upon request of the council, recommend the district plan and regulations for the city. Tentative recommenda- i tions shall first be formulated and a public hearing or hearings he;ci thereon by the pian commission, or plan committee functioning in lieu thereof. After submission of tile final recommendation, the ' council may from time to time, after first submitting the..pronosal to i the city plan commission or board of public land commissioners for r 1 report, change the districts and regulations• as recommended or as adopted, upon, giving at least 10 days: notice;` by publication in the official paper at least 3 times during the preceding 30 Gays, of the proposed changes and of hearings thereon, and opportunity to any z _ person interested to be heard: In case, however, of a protest against 1 = such change, duly signed and acknowledged by the owners of. 20, per 1 y cent or more either of the areas of the land included in such, oro- the /rry «-ners of 20 per cent area posed change, or by the oor more of of tile land immediately adjacent extending 100 feet therefrom, or j. of 20 per or more of Ole land directly opposite i by the owners 100 feet from the street frontage of such opposite - 2 thereto extending r land, such amendment shall not become effective except by the favor- able vote 'of.three-fourths of the members of the council. { (e) Bom•d of appeals. 1. The council which enacts zoning reg- ; ulations pursuant to this section shall by ordinance provide for the - 411 j Ch. 62 CITIES, GENERAL CHARTER LAW 62.23 2. In case any building ,or structure is or is proposed to be erected, constructed, reconstructed. altered, converted or maintained, or any building, structure or land is or- is proposed_to.beused in viola- I' tion of this section or of any ordinance or other, regulation under • authority conferred hereby, the proper authorities of the city, or any ' adjacent or neighboring property owner who would be specially damaged by such violation may, in addition to other remedies, insti- tute appropriateactionor proceedings to, prevent such unlawful erection, construction, reconstruction, alteration conversion, mainte- nance or use; to restraincorrect or abate such violation; to prevent the occupancy of said building structure of land:. or to prevent any illegal act, conduct, business or use in or about such premises. 1 (g) Conflict-icith other mics. JYLicreycy,the re;tflat ions_made 1 under authority•of-this-section require a greater widih;'or since of yards, courts or other open spaces, or require a lower height of build- Q. t ing or less number of stories, or require a greater percentage of lot to ' be,_left unoccupied, 'or'mrose other Maher standards than are re- 171J' S quired in any other statute or local ordinance or regulation. the pro- visions of the regti ations made under authority of this section :,:hall ova ern` Wherever the provisions of any other statulc or.local ordi- rdi- nance nance or regulation require a greater width or size ofyard courts" ' - or oiler open spaces, or require a lower height of building or a less t number of stories. or require a greater percentage of lot to be left unoccupied, or impose other hither standards than are required by th�tul•3lions_made under authority of this section the-nto-Lions l: of such statute or local ordinance or ieeulatiwi shall garnrn V (h) \onconforinirig uses. The lawful use of a building or prem- 't Ises existing at the time of the adoption or amendment of -a zoning - _ -ordinance may be continued although such use docs not conform with the provisions of the ordinance. Such nonconforming use may not - c _ be extended. The total structural repairs or alterations. in such a nonconforming building shall not during its life exceed 50 per cent t of the assessed value of the building unlesspermanently changed to a conforming use. If such nonconforming use is discontinued for a - o period of 12 months. any future use of the building and premises shall conform to the ordinance. (8) Other measures of enforcement and remedies: penalty Any ,eO, :• building erected;; constructed or reconstructed in -violation- of this t- section or regulations adopted pursuant` thereto shall be deemed an r u.-ilawfui _structure. and the building inspector or city attorney or :- - other official designated by the council may bring action to enjoin s such erection• construction or reconstruction. or cause -quell structure to be vacated or removed. It shall be unlawful to erect, construct or 415 # 1 74 Ohio 192 NORTH EASTERN REPORTER, 2d SERIEna 3 a' an intersection when faced with a yellow Iicre he abuse of disci ± o ulna ce light. Case v. Carter, 103 Olio App docs o In ssD- pp+'ll - of which aaa plane-:, ,hc ss.,r 142 N.F.Zd 670. In that case he syllabus - s crratioaal°_free; is in direct of eommu provides-: conf}ic, La-. es.ith. :itc 1 The trial court undoub:cdly:applied 'tile "1. Under the - Affirmed. ~ _ provisions of Section ordinance prope.lysto_the admitted facts 4511.13;:I Iscd Co,i_, a-motorist ''en- Corrigan, who of this case, but, inour Opinion, that part leis a,strcct intcac ,ion controllc•l by a of the ordinance •which order the defendant traffic iF al on a yelto:r light is lawfully was charged isinvalid. I. Municipal C. x thin the intcrSection and may continue + cautiously through ,he intersection, and The judgment must therefore be, and _ f 0.dinana s traffic. entering the intersection from an- hereby. is, reversed, and the defendant dis- and maintain' charged. -other direction on a change of a light to development i. - - '-- - . .grecn.shailyicld the right of ava • to him: ` - _ y -Judgment reversed. - -- tributes to gel -� - _ The same result was reached in the case 2. Municipal P of Stain v. Jack P. Tats ec Associates, Inc., CRAWFORD, P. J., and SIIFRE•R, J., Ohio App., 131 v.E.2d .--6. Citys em 1 concur. personages sun It thus appear that the ordinance for-_. -. of applying'.? bids that which the statute permits. riencc in'help _-_Practical considerations point -more ards ofcommt nen .convincingly to'tile operationai inconsisten- 3. Municipal Ct cy of rite taco enactments. ti some munici- --: palities were permitted to prohibit a -trio- Ordinance � toilet from entering an intersection on a architectural h yellow light fodoxing a - - ;, ti green Iight, and Donna S. REID, �. tain high char: _ Pla;ntif:-A o he s, eonformin,'tvith the general law- ppeuant. tees realty Irot he •::bj c.,-, _.tint - ` v. on the Saint, deC :;Cd `. ' of value was evert rtoto:1st traveling throughout Ohio- The Fn,MMITECTURAL60AraD OF RE- 1 - Dolice power 0 .would necessarily have to approach such VIEW OF the CITY OF CLEVELAND '- traffic signals %%th a menacing uncertainty. HEIGHTS, Ohio, Defendant-Appellee. 4. Municipal Co - and indecision. BY the same token, a mo- Court of A Oblo, PPenis of _- - O.ilo, toric proceed -Ig with inmumq•. in one cit -- y bo d o ea ie _ would, iw Cnyaho:a County performing the same act , erh, anti m i j under - identical circums anees, be sub;cet n trim- July, l:a 3. > development, a inal prosecution in another city. Surci a - - -: pairrnent or do - 11 motorist is cn+uls.l to some assurance that -:_ Proceedin g on application "riles _ 1a mg, deco di; the to city Of the road" .are the samc ., i..rd- - in""119 cOmmiesfOncr for .. principles, the permit to co _ less of where he travels. Furthermore. if -` struct Onc story. resirleice. The -arch n- n. ings"was rrsor _- one municipality may require the oper- tura) -board Of disapproved _ .-twin% they ator of a motor vehicle to stop on: a yellow - project, and appeal was - 5. Municipal Col ' ai;en. .The Court ( signal contrary to clic state statute• xh:d bf Common Pleas of Cuyahoga s prevents another city from enacting lcgisla- rendered judgment in gthe focal to app o:_ l to app- - - a:or of board, .tion-requiring the operator to stop on a and the applicant appealed. The Court - _- - endenee_o ra green signal? of It requires aC a -little n.agi- - ;Dpeals. iCoaachy, P. i., held ( dIca;e con-.: c. ! _ - that tri- nation to .visualize the re-uis if each vii- --dente supported -judgment - zorm to-gencraI a that refusal to lagC and city could enact its Own ,rafnc laws approrc construction of is sul,i-stora -n .One story' resi- irrespecti:•e of particularly local - traffic dente of radical design dint oz discretion S'i could indicate problems.. Obvioush•, the salutary purpose -commercial' building and '. did _ -review, purpasc - not conform of theUniformTraffic Act would be do- to general eha:acter of cater hOuseS.zvhich high character featcd. were in multi-story neighborhood was not •-�.,..,�*:•..,,•+�-inti.-..,++•v..-,-s, • • a BOARD OF P.EVIE\V Ohio (� - - REID �. ARCHITECTURAL 711 _.. _ cite as 192 S.E2d ri of discretion -rested in board. Purpose Johnson, Weston, Blackmore, Cory S for appellant. merely sup- abuse tc'nich.tvas maintaining high character Hurd, Cleveland, plaintiff ; tional.effect - of of community development_ - King p Wilmot, Cleveland, for defend- - Affirmed. ant appellee. .' ! applied the Corrigan, J., dissented. P '• mit•.ed fats - - KOVACIIY, Presiding Judge. rn, that. part he defendant - 1. Municipal Corporations C=599 This is an a:, ,. questions _Of ]aav by the Cour: of _ Ordinance designed to protect values from _a judgittcnt rendcrt+l Common Pleas in iaror of the defendant , i y be, ore be, and and maintain high characterofcommunity. The. Architectural P,oard of the - ;! _fen dis- dcrdopment is in public interest and coil- ,.appellee, -. City of Cleveland Hcights, Ohio. _ s - tributes to general welfare. Donna S. Feld, plaintiff appellant, here- {- : -- -. 2. hiunleipai Corporations C=599 ._ inaiter designated applicant, appiied to the j ' City's employment of highly trained Building Commissioner of the City Of ' -IIERER, J., peisonagcs suci, as architects for purpose Cleveland Heights for a -permit to build a o f applying their knowledge and CxPc residence on a. lot owned by tier and her - -. rienee in helping to maintain high: stand- .husband on- North- ParkBoulevardin ards of community served the public good- Cleveland Heights. As required by ordi- i _ _ Hance, .the --plans and;. specifications w•e:c -- __._ s 3. Municipal Carper x599 - - referred to the Architectural Board of:. j - " -Ordinance providing _that purpose of Review, which Board, -after due consider- -. architectural board of review was to main- ation, made the following order:- _ ' tain high character of commt:nityand pro- ild- "This is for a single-storysitebunl - tett realty from impairment or deetruc tion of plan ing and is submitted. for a a nppelianl, ' ..tuttoal exercise of value was eo=Ln and was valid. -multi-story ._ residential ncighbo:hood. , polite power. by city council The Board. disapproves this project RD OF RE- CLEVELAND .. --q, -M1tunicipal Corporations C=625 for the reason that it does not maintain c- of community dc- '. t -Appellee. - - architcctanl - Ordinance--mstructmg Ordinance the .high -character velop:ncnt in that it does not conform _ Ohio, board of -review members to protect. prop- _. to the character of the houses is the - erty, maintain .high character of community -: .. --development, and protect realty, from im- arca." i . pairment or destruction of value byrcgu- L -port appeal to the Court of. Common in 'pleas, - lating, according to proper and»tcc:ural that court rendered a judgment principles, the orientation of all new build- .favor of the -Board, holding (1) that the . • f tion to city fo'.con- - to _. -- - ings was reasonable. , :Codified ,Ordinances' were constitutional ermit co The arc itec- enactments under the police poker o: the - the 5. Municipal Corp0 621 ' City; (2) that the Board had the power approved approved The Court I_ ...Evidence suppprtcd judginent-that re- .and authority to render the decision ap- from; (3) that Board did - -: •ahoga County fusal to approve construction of one story pealed do: its discretion; an (4) that due of the board. - residence of radical design that could in- - abuse ,.and accorded applicant The: Court of -_I - dicate commercial building and did not con- _ process was held that evi- ' form to general character of other was not abuse - -`- The Bovd is composed of three arcbi- t -. that refusal to in multi -story neighborhood -discretion -given --architectural board of .tCr�-[eglstered and authorized to practice- ne story'resi- t could indicate 1 of i review, purpose ofwhich _was maintaining architecture under Ohio laws with ten - as such. .t id not.confor:n j high character. of community development. rear`of-g^neral practice : 'rr houses which orhood was not i 1 -76 Ohio- 102 NORTH EASTERN REPORTER, 2d SERIES - Section 137.05 of the Codified Ordinances ' arbitrary are questions whici arc com- of the City of Cleveland Heights, titled mitted in the firstinstanceto the judg-- t t :tom,. •••s••-SC,tce.z "Purpose". reads as. follows: - mcnt:and discretion of the legislative ) --- the matters < PC- e- -'The purposes of - the Architectural -body, and, unless the decisions of such i - "proper architect: -- Board of Rcs•icss• are to rotcct ropy -- legislative body ^on those questions ap-- formatives as to?fit - euy, on arc -' -.- buildingsiarc con- -. -.pear-to,be dearly-ezroncous,.the courts. ! it is to exerase-t:_: - or alt strutted or altered, to maintain the will not invalidate them." complishmen oz .. ; - high character of community -develop- - - mentand to protect zeal estate within [1,21 The City of Cleveland Heights: is fi [41 1tneq bo-; bees of mc Boarc this City .from impairment_or dcstrue- a suburb of the City of Cleveland and. was , _organized - - :tion of value by y rcg`ttlating accordi ng to provide suitable and com- :.--perts in thefield ;;,struction that trc; toproperarchitectural principles the 'fortable--:.home surroundings for residents „" - -..i : design, use c; materials, finished grade -- -`It employedinCleveland and its environs :- on :: proper arc. 'profou.idly rc pts until rca5:cc lines and orientation of all new build-- has no-industry'or railroads within its -:.. Ings, hereafter erected, and the mov- - - - confines and -is a dell -regulated and care- - pion - ing, alteration improvement, repair . fully groomed community, primarily resi- ;on which -their pr - ' adding to or nzi_ng in whole or in part dcntial in. characters-�_An` ordinance de-_ - 79 ,. It is our slevy; _. - of all existing buildings, : and said �tgued to protect val&r nd to_maintain_a 13x.05 contains: a- - - Board shall exercise its powers and. -' high character of commurrity�deye+opment•'— -- ards reasonably ne perform its dutiesfor the accomplish- is in the publie_iG#res• and co-•ributesso— carr• on the - - ment of said purposes only." the general welfare.: Moreover, the em- - ploymcnt of highly trained personages such In I Ohio Js s, _ This ordinance is intended to: -:,.- as architects for the purpose of:applying -_istrativeLaw avd i their, knowledge and experience in helping it is stated that :_ I. protect property, . - to maintain the high standards of the com- g - - .. ' "The discretionf 2- maintain high character of com- munits• is laudable and salutary and serves trative ,. age•te es ctumty dcvctopmcn:, - the pt:blie• u _: fired :d . 3. protect real estate from impairment -_- destruction ��• -- _. [3] \Vc determine and hold that Or- t i ized within ban' overflowing- -_ or n e. _ of value, and the Board's ;dinance`13i.05.is a constitutionalexercise powers arc restricted "for. the accomplish- of the police power' by _ the City Council - [SJ We have - - _ ment_of said purposes only. -- ------ _ - - - - and is, thereforq-valid.:-State c: rel. -� tions -filed:in this :These objectives are sought to-be-accom---.Saveland: Park 'Holding _Corp. -:v.-\Vicland, =.closes that-NorthI t plishcd by regulating: 269 Wis. 262, 69 NAV2d 217; Froelich v. district zoned for.- - - City of Cleveland, 99 Ohio SL 376, 124 N. to exceed thirty -n-, 1- design, E.1212; .City of Cincinnati .v. Correll, 141 -and one -halt or: 2. use of material, -` -- Ohio St. 535, 49-N.E.2d 412; 10 Qhio - and which arc rec 3 Jurisprudettce 2d-227,,403, 4421 Constitu- I than fifteen the si ,.3. finished. grade lines, - '. tional Law, -Sections 15-9, 325; 366. - ( .,,space. This distric- 4. orientation (new buildings).. i `arca with bulla n. Section 137.05, as outlined above, sets ( trees, ravines, and` The Supreme Court of Oh • - Ohio in para- out criteria and 'standards for the Board to _ _ _ wide on its south . - graph -six of the syllabus in the case of -:-follow in passing upon an application for this Boulevard arc. Benjamin v. City of 'Columbus, 167 Ohio :- the building of a nesv. home which are defi- 1 s'.a.ely aac cors c` St 103, 146 N.E2d 354, states: nite as to the objective to be attained—to' and one -hili so. -.C; - - -. - --protect property, to maintain high char- °-_- _. \V ^hether an exercise of the police atter of community development, to pro- The house de poster docs bear areal -and substantial tett real -:-estate from impairment and de- described by appti relation to the public health, -safety, 'struction.of value; .specific as to matter, t complex of twenty, ' ..morals or general welfare of the pub- to be considered and regulated—design, use is. ten feet high,.J Tic and whether it is unreasonable or - of material, finished -grade lines, orientae i arranged in a loos v)inds its w•ay, tttri i' - ..-. ._ _ a,.•�.�.C2TJ6'T{'� _ .. .. ..y.y - T-'•i.1n ..... rya.. ARCIIITECTIIRAL BOARD OF REVIEW Ohio 77 REID v. cite u ST 1.E.2d 74 iich are. ccm -. percent �a1. -.ca o: ' • to the method by winch About stet}• -opens i •e to the judo - ,..`. d pe tion; instructive as on an ell-- .are to be adjudged— the house is glass and the legislative + the the maters specified and, in- closed garden; the rest of the walls are of such i "proper architectural principles" bounds within -which of cement panels. A, garage of the same ymstions_ap- _.�� formative as. to the stands off front the for the ac- is to exercise *hese powers --with their �u;, the courts honse,tand thesection it two structures, of said purposes only." trellises and " complish nent -- - associated ga den .calls _.... d ex rr\'hen borne in mind that the mem- courts, form a serves of interior oidt-ees eland Heights is - 141 - bets of ie. Board are highly trained cam- . .terior spaces; all under a canopy by a`gxrden i dwascom- the'fic1S of architecture, the in- and baffled from the street abenandevelad 1 - perts'.in -struetion-. that they resolve these questions wall. �is -s for residents -' i - - h•te turf principles" is - s :call ten high part of the front _- d its environs. on -A -feet rwsnnabie since such capres- = s,- g -struturc of the house n,a_cand c<" ;Dads within is --: i profoundly sion'has reference to the basic kno.vlcSge tends all around the g rden arca.- I:. has �la!ed and care-.. k- wl»ch theirpr°fessionis found --nowindooa.-.'Since the wall is of the same primarily rest- on therefore, that Section -height as the structure of the house, no . ordinance de- t It is our view, he all the criteria and'spiml partoftile can be c�i[-isoha - Seto maintain "a l.. allappearaneesouse 137.05 contains just fhigh or the ]Soars to From : - developmcn"' ' ards rcascnably necessary is noi ' ofa�iailb duties conferred upon it. - :`contributes to - docs the housedication :hind it,l' Not onl}with caon the rry to :eover, the em- In l Ohio Jurisprudence 2d 431, Adimn conform in any mluner with the other uersonages such istrative Law and Procedure, Section 28, logs bvt.pyn'Ynosde;ttilgc,ri"n_that_ ase of applying _.,. '- it is states that: it is���e- icace in helping 1 "The discretion conferral on adniinis-- The Board, as well as the architect for ,rds of the com--. and serves j _.. - trative agencies must not. be uncon the applicant, concede that this,. structure :tary -fined and vagrant but_must be Canal- uoulS bNa-.ten interesting -home placed- izcd within banks that keep it from in a different c y.o..ment.. It is obvious .. hold _that Or- - a overflowing." - - - placed on North -Parks-Boulevard,.3t— .. ; r tonal exercise 1 _ .that would not only be out of keeping with and a the bill of. cxccp- - - e City Council S \Cc' have read 1. radical departure from the structures no:v., It dis- :. ---tions filed. in .this case cartfully. = eqr••;_ st-Atheiding would iSc Sate ex rel:- ; S to e:eland, closes that North Park Boulevard is in a - fur her clo mene t o ti c area since i district zoned for Class 1.\ residences not two lttacantmlotaon 17; Froelich v. ; aih•.rdcant to exceed thirty lite :cct m h igl:for av° i}i�rwest and ae are the . St 3i G, 124 N. Correll, i4l -.- F and one-half -, whichever id lesser, ._ s reel bordering the_vvesicrnmost -tot. i V. - - and which are required to covernot less 412-_:_:70 Ohio fifteen thousand" square feet of lot-...sthcties wu a eonsideratio. h „ 4-t2,'.cons titu-- I -than This district extends through s Park l lved a -part in [hc-ruhng ofhe Board 05 366 .space. with buildings on the north side and -tial t tcrc—otiaetorssh - above, sets arca trees, ravines, and bushes hundreds-oE feet-flucnccS ns decision' Therstructure<de- ; ned far the Board to I signed is a. single-sten• home in a multi- 1 .vide on its south side. The buildings on . -l---� application for thisBoulevardare,..in..the in. dignified, ; store neighborhood;-. it docs not conform it which are den- " i stately and conventional structures, two ; to general character Of other houses; be attained—to p ..and one-half stories high. would -affect adjacent homes and three va- vain -`high char- t - The house. designed for the applicant, as cant lots; it is of such a radical concept to the opment, to pro- described by -applicant, is a flat -roofed that any --design not conforming the irment and de- coinplaK of t:centy modules, each of which . general -character _of _.neighborhood bc._ thereafter. app Deed; C as to matters 1 istenfeet high,. -twelve.'_ feetsquarc and -would have to when viewed from the street, it could indi- ted---iiesign, use arranged in a loosely formed "U" which it does not , e'lines. orienta-.i _'winds its teat' -though -a grove Of trecsr Bate a commercial .building;. -.7S Ohio 192 NORTiI-EASTEP.N_ REPORTER, 2d SERV`: conform to standards of the neighborhood; Pleas of Cuyahoga County, of ^ing as '. it does not preserve high character of _ order of the Architectural Board e: Review rts 4 , _ - : neighborhood; it does not preserve prop--- of the. Cit} of Cleveland Heights which dis- - took the -e I .Va -.erty,values;:. it would bedetrimentalto: approved the issuance to appellant herein ;,hurtproprty - neighborhood on the lot where.. proposed of a building permit for 40 family :Boulevard, did is and it would-be detrimental to -the -.future residence. The proceedings in tie Court : I A.— Our. issue' - - development of the neighborhood. - of Common Picas were in the r;- .:rc of an -of ' a �ingle'stor v "h - ---- -- appeal, under favor of the p evasions netahborhood - 16 C.J.S.-Constitutional Law. § 195 Es- Chapter 206, Revised Code; f:om the deei- '-- '- thetie Conditions, p. 939, states: - -, sion of the Board. 'Q. In otter --- "The _concept of the public welfare is -- " - ` To briefly review the factual situation, ` eerned • _'. -broad;and -inclusive. The values it it appears from the record that on Decem- "A. • • • m - represents arc spiritual as--yvell as --bcr IS,- 1961.:appellant completed her ap- ' to the arstlictics - -� physical;esthetic as well as monetary. -- plication with the requesting a build- ! (Emphasis aade,: It is within the power. of the: icgisla- _clans - ing permit for a:singic :proposed family - : "Q.- Your ober. - ture to determine that the community residence to be constructed on a vacant - should he beautiful as well as healthy, _ - -- '. on thenorthsideaf North Park Boulevard. on the.appearaa mar spacious: as well -tis clean,. yvcll-bal- -- pursuant to the -applicable -=ordinances of - - ___ not upon any -- _: possibility? patrolled. anted as well as-. carefullythe City of Clcrcla nd Heights. these plans _ -. ._ • - Nevertheless, it is - held that esthetic- wcrc_prescmcd to 'thc-P.card for rcricu• ' "A. There is ;1- :conditions conditionsalone arc insu^icicnt to sup- : and consideration. A hearing was .had on house would be :.- - port the ..invocation of .the police the application and on February 6, 1962, the . with'those in the - power, although-: if a regulation finds -- Boarddeniedthe permit for the reason that -`• I a reasonable -justification in serving a the proposed residence "docs_not maintain _ _ • --` plic heaPole generally- recognized ground for the the high character- of community develop- _.- was denied - exercise of that . power, the --fact that - ment in that it docs not con o -m to the -_.1- i}:e Fosse did rot esthetic considerations play a. part in character of the houses in the area."`- - its adoption does not affect its valid- - atter oi;the oziie11 - ,. - - - - In this dissent it is deemed necessary Park Boulevard ,•: _-.._ jty. -. -- merely to consider ..appellant's first assign. t .•A_ Yes: r It is our determination and w•ehold that mcnt of -.error, namcly, that the Board's the record in this case discloses ample cvi- denial of a permit was contrary to lava - �� "Q. And the api : -- - :dente to support .thejudgment of the trial in that it - based exclusively on an because of any:1 - court that the Board did not abuse its -was aesthetic consideration. That the Board's violation of tec discretion in its decision -in-this.matter..:-.determination was based entirely on such .-. the: building code's :. \Fc conclude, therefore, that no error a consideration is, to this member of the -establishedbytherecord_ "A.: Oh no ..prejudicial :o the substantial rightsofthe court,conclusively •, •_ applicant' intervened in the trial of this before us..,- Takelfor example these quer- -the • cause consequently, overrule appli- tions and answers in connection with At the mec - -and,.: .. - cant's assignments of error- and affirm the interrogation of the witness. Russell Ralph -. and Febniar} 6: Peck, a registered architect, who is a mem- dence before thel judgment. - -- - her of the Board of Architectural Review, if built,would ti -- --judgment affirmed.-. - --` _ at the trial in the Common` Pleas` Court. -" inpair tie pub"' - - It should be remembered that it was stipu- safety?'' SILBERT, J., concurs. - - lated by counsel - for bothpartiest:-.at, 'If the other two members of the Board of - - -. --- __ -- CORRIGA\, Judge (dissenting). - - - - Architectural Review would have testified, - 'Q. Any evide->' I that I am unable to: agreewith their testimony would bethesame as the that jf that house regret - the decisionofmy esteemed colleagues in testimony of Mr. Peck: It into be remem- adversely- affect._.f: this appeal which is on questions of law bored also that both of the_e other members Peck from a judgment of the Court of Common arc likewise registered architects. •A. It might afiy 55f Ss7 �tuNIc1PAL conronArloNs Art..l� d in one of the enactment of J _ 13. \one oL the. Provisions-of \ t C\'Ili o[ consci- loaa5n6c. and thereafter until change Sate cx rel Ramey gencral.laus for. U,ciramendment;-(2) by municpal- ',3briuge the spacrcignty of statepvu manic- Uvcc modes folloaving: (1) in respect to its cotuts -laws Lo be ratified by the electors of the doptio of a Davis. I19 Os 59fi, 165 NE •�. - - b Utc adoption of e lectors n( a t• 14• The proa=ions of Art X\"III of Uhe comtitution_ icy to be affectcd'thereb}; (3)the Art zeal. do not deprive the slate cE tm' so� l«�QO;i ci ccs pointe l6outli nelUtis�rarLcle: statcpe irelnToledo V. is 335,. 101 - cities m res •ct to the ppublic ha nth, p -10 \E 67Q 45 LRA (\S) 720, I f 3,13. 01inz to c<crcise q'. ^rnenl lives: lh+aan+s r. Dr trtmcnt _ - �nnCGts 19HD,�9 {9; cited and Yollowed in Fitzgerald of Ilealth L'o OS 4 G 166 NL S U. re Jdop!ol 13. C.encr.d . asscnhhly lies authority tp- male dis• t Clcvclaud, SS US 333, 703.NG 0).99, :\magas 19158, a3rtc tiros, tinclions bcUaccn (pens of citta and. at: 1:o`'crn- - 10G. Since.this sccliou and Art V, 3 7, w•crc adopted if iran!-le, ,n_rnc_�l-etc `c<- rel Ile ernan t• bczP•'-1'13 OS Sr• s amendments to Ute constitution at die same time, Jrstn+ctmn: IJO \E 600. - - 1 \E 51'. 16.E 650..G"Cral-asscmblw can fix manner of dctcrntin--. - they_ -must be constmed together and,: if possible, - ing PO of mumcipallts and. lime when - dif emnCes mus ane r OSeconct933 b103 \E 1�',%nncas relatinc In ehanget (orm o, government. on acrNiri+rs cih• status, 6 _ ad0ph41 'hall Fxconu r rtlec Uv c. State ca n•1 _lief(crnan v. 1935 Art \ Ill s: 1 to 14 of the constitution of Ohio. \lurray v. - seep. I'_a OS bZ,IM) NE 650 which should include any 71,AnnCas 17.:V- legislation 1 afNEi65 uwutcip,d guvcrnment, was not,intendeddtd - preven�thc legislature from or- norivitlhtl mninK_ gencnl and unifcnn. opernl+on, bav Kamzing ha3tiod distracts. _ - a poPuU• ing etas +tic t!ipn of cities as }„sic principle. 1 \hamirCmf nmani paytton592 OS 2155110 \E counties: - iast federal - cpn;htnuond \tan field-v. lindla 38f:1pP 4. Tits Plain` purpose. of the municipal home rade _ .as made t^ - \E 46'2 ula- amendment, adopted .September 3. 191'_' (.[tri to rVIII, is municipal 1S. Statute clasafa+•tg cities according [o POP1.1 of Of ,ad -a:pope- `ti,,, n ds.lap.dnas atohtm?: ton itutional provision _ Immependentorule fonccities, sta Ilic6 obvOluslp indudcsvthe - ide11� ^y_ v. Stat•• the - ..3519161). dassifaing-municipalities as a yes"o: tillages..\tans•: _oflcthe-rtnmticip�lity or other officers anthorized�mu £eld c. Lndla 35 .1pp 525. 176 Nf 41,,_,. 92 OS 1 the abuse I9.- Consult :ion .\a XVIII (!-Dobe rule amendment) nicipal officers: Stale es rel Ilailcy V. George, -5. Stabiles passed pursuant to the home rule- 3•hg-muni¢- does not de;uiVC the lcgitahtrr of Q;c state of power 3 N. S to \e 951. vea-cnt th•• to "culh :i.c hours of work for Bremen engaged which the - in the nlaudrnance of fire derartments in cities: amendment of SE' tem{YT 3.-1o). shot d be fs 1 to ord to the Tailor -v. Cie eland, 57 App 13'_, 42 00 3.18, 93 consvtis'd so +as, tot+effect ton ofhe Plain purpose lof such _ 'ate ev TA _. - NUM) 59"1- 9'- OS 343, 1916D. 0. The cf ecl of the census upon the classification amendment: Side e< rel Bailey v. George, -. -: of Ohio -municipalities. Dr. 'llarold-T. Tawe. •11.00 llo Nli 951. :1) contains - ..429. docs not 9. The political <obdivi,inns o(- tl+e state are no t �. �- owe r5.1 \ - hoes not -entitled ie tvecrIt ncrosches and the state to-the �Iunici alities shall have authority to exercise. :;ion of the entitled s b rights. of. p:hate - persons -They arc 111 povi•crs Of local self-covernment and to adopt ion did not mere political '.agc+iacs of tile state. and. in the 1113 _ -: - -. _ m one class -sense of'sPrcific- cotnstit,tiprnl Provisions. the legis- and enforce aa•ithin their-limits-such local,Qolim. no, be left Iature may dr,d with them as it plcasrs: Northfield v. sanitary and other similar rcculationsi115 are not Nestor, 91 -` \Macedonia. 22 CO XS) 50. 33 CD 415..:: - - in conflict with general laws. (Adopted Scptem / 22. The retretacttve effect of the home rule amend- M of Ohio. went docs no, militate acainst its validih: Ilnckclt bet ,.3, 1013•)^ 301,561; "No," 215,120," :e from or- - v--Liquor License Board. l0 NP;NS) 417. 25 OD. 117 .Vote: '"Yes, ❑heiuI! am - laf£rmed by the conn of appeals, which was affirmed. _ _ - - ?' counties flockett v. Liquor Licensing Board, 91 OS 176). statutory References O Nontars - 23. Municipal government in Ohio 'before 1[912. - Powers.of municipal corporations. RC ,3 515.01 home ndr - Artic!c b)• I lan•cy \Vnikrr of Ohio State Univ.:. 9 _ _ - et scq,. i 15.01. - fatSFlil. _ OSLl 1. - Sec RC §9713.13, 715.30, 4105.19 which refer to _ ,t0 pamide - this section : - - mludrs-the § 9 [General and -additional law's.] _ the-lscnrl^ �' - - t�ncx To use Worcs zed manic General law's shall be passed to pro for the IAw raiov articles. 24. 25. 53-57. 83 ate,: 92 O` _ incorporation and government of cities and vil- powers of'municipat corporations. 30 ct scq laces• and additional laws may also be posed Chartcr, adoption o6 39. 40. 42. 43, 30 home: ndr i far: Ute goa•cmmcnt of - municipalities adopting - etuner div. 33. 311 -. CV ll. ! dlse.lilwr- ` the same; but no such. additional law shall .lie- - nctaduncnt and annexation. 48 purpose of come operative in any municipality unlit it shall Ertesr of mnoitntion. 30 ' Ccorge.9_ - i hate been submitted to the clectors thereof. and General grant Of power. sl oastnring a =.- affirmed hy. a. majorih• of those voting thereon, t"acothority of. municipahia62 et 66-32 'SVSIL. to under regulations to be established be tali•• charter adoption of general laws. 63.:6 Uonal cvn- , (Adopted September -3, -1912.) _ Eminent domain 73 I toil of tl,r - - '- 120. --beneni laws, defined, fit. 63. i7 tate ec-Tel Vote: "l'cs,"-301,561; "\o. 210, - s ._ - MAN Te\'IeW article.6 3'. -' CASE NOTES -ia i in effect-when constitution adapted. bt I classified 1•cnalty, different .a ii ]c^hslature See also case note 40 under Art 18, 3 i. - Rlgin to adopt laws ..82 )asstfiCatina - -1.-Thr-],rm'isions of All XVIII of tie constitution .law review: aniam 5337 9a¢ rmnir- 21 arnet0f•�1 in SNj.9:mb!r, 1012. continue In force t.lafurY.de dJ,.L:8. Si. go OS :a0ti• the, general laws for the gov "an".t eL- elt.et 31,01 UtScm, xfeuf rl r4 n - r•� villages until the lift cenih day of \ovcmber - fol- - t =y `PLANNING COMMISSIONS � § 713.06 board.- commission• or bode CASE: NOTES - - • - •.:. still -jurisdiction, and the commissions • -such L In mandamus lo-compe-t b,tildine inspector to _ ruvri mar be overruled by ofcial. -issue permit,; defense ' that -.inspector "could .not -issue -., ..t, .vntmissiun, or body by a .ate of not less -pcm»t without _approval of - planning commission _ - - tsa a_lhirds of its membership. - The. narrow- (not party. to suit) was valid under this section: State ,.a ' t ,ml.nncutation, vacation, or change in the c1 rel Mason v. Palmer, 119 OS 555,- 1655 NE 96. - ' :..r. •d. slic•t-ts. and other public %rays, grounds, §713.05 - Employment of .architects and •--- I,cYs shall be subject to sjntihv approval., engineers. (CC 9 4366.5) i ,pproyal may be similarly overruled. The ' ,am'may make recommendations to am The " planning commission may Control, ap e .nnitorities or. to ancorporations or - in point, or employ such architects,'engineers, aad _ ' in such municipal corporation or other professional service, and may appoint such - -., _.i ..,,v contiguous thereto, concerning the loci clerks, draughtsmen. and; other subordinates , as 1 buildings, structures. or %corks to be are necessary for the performance of its func- .tidy or constructed by them. - : ..tions..- The expenditures for such service and - t,,Ki: CC a 436(-2: 106 1 { . 02: tit . 217, F i. employments shall be within the amnunls ap- for, propriatcd. such. persons b1. the legisiatire authority of the municipal corporation. and such - r._.rch Aids - legislative authority shall provide:. for the ex - amt duties penses and accommodations necessary for the t .o.: %Inn. Corp 40, 170 workofthe commission. - --� - ,t )nr:-%Inn. Corp.: "265, 2(18 111STORI•: GC F {566:4;..106 • 455 (466). 0 S. ER- _ -_ CASE NOTES Research .lids vie notes 2 to 6 under RC i 723.09. - Employment of assistanu anti compensation: - - i:her the Cincinnati charter nor this section, - Page: Mun. Corp.--Ei 206. 2I0 - r--; to ptanning rnuut» ssions,.apply' to :Le ereo- O- lir. \tun. Corp.m• 93 26-1, 265 -_, •-. ' ... a state highw:r•: .1 . nidce or viaduct on - - - . I rel Ellis v. ltla-enlore, 116 OS 630, 157 CASE NOTES At. ' I i Le I. and of park couumssioners-and the city See also case notes 21. 22 under RC"9713.01. - a oudssmn n of a city nr,v loin -to cut- I. The lanrd of park commissioners and the city. - - -- _ - t! .rn ices of m enunur.scho %lull serve Plmoting commissioners of a city- may join in em - Pia as its ea incer ,,.d ewcutis,• uTcur ile rasries llo�r c ��°), nu( ttl rescc,:: - ,.-� ulficcs are compatible; iJ33 OAC sol.., _ rm er n eryand is ' 1: The two offices' are compatible. 1922-OAGyol2, _ •: 1 i 13.0" Planning commission shall be commission.... (GC 4366.3).. -§ - - 713.06 Division of municipal corpora- . - e pl:mnine commission of a municipal cur- tion -into zones.` -(CC a-1360-7) . •.•.'r -n shall be the platting commission thereof, The planning commission of any municipal Cor- `adopt all tile powers and duties provided by see- flotation may frame and a plan for dividing' Ic .ii.l7 to 735.46, inclusive, f the municipal corporation or any portion thereof a mon cised III sh.til, uprnl the apppointment of -a municipal t into zones or districts,; representing' the recom-- annmission under section 713.01 of the mendations of true commission, in the interest f2 = :,nl Cod,. be transferred to it. - ••P InNt:_CC S the public health, safch, convenience, Comfort, $I 0 iOS Crll t', Or Ch 1'�dfa .far Lf1C hmitatiorl5` 04366.3; 106. 455 (156). as. ER 10.1.53. and regulation of the height, bulk, and location, l-9 �•a 1 4^ nh Aids _ including percentage of lot occupancy, set back: r�v-cute unmulsslon --- - - building lines, and area and dimensions of yards- 1 MIM. Corp �9 40, 179 '1I+g. %int. Corp.. --- courts, and other' open spaces, and the uses of fq��`� _ bS i - - _66 -. buildings and.othcrstructures and of premises in _ Control as to buildings. (CC such jzones ;or.districts. — 1115TORY: GC 9 4366.7; 103 r. Pill 1175. En 10.1.55. - ir,tslatiye authority of a municipal: Cor- Cross -References to Related Sections - -" "*n may authorize the planing commission See RC 99713.13 .13.14 which: refer to RC the height• design• and location of 9713.00et :.may f.0 F 1166-1; 106 r {55 ({36), R {. ER 10.1.53. ti{'�•••rh Comparative Legislation 7.oning and building regulations: Aids --: Cal.—Deering,-Gov C A, 935690 et seq - .•rr: and dutic of commission: - -- Ind. -Hums' Stat; 1951 Repi.-953-764 et seq - nr,. .. 'ilnr. `\bm. 51 Q� 170 - Mass.—Ann Laws, ch 40, 9 25 et s Penn.—Purdon's- Stat, tit 53, et Cugt- -. .:;3821 seq, 9189 et seq, 12198_4110. et seg _ 44 43 ' OHIO CODE SUPPLE\SEN OHIO CODE SUPPLEME•\'[ —- rovisions in effect by the enactment of an commission. emergency ordinance as Provided by law. ': thorities:'an rdiaance is so indefinite pursuant to AC 4S T13.00. to 713.12,. inclusive, or -Blackburn inde:maa. COmL. Art. XVIII, S 3. and any Person coming within g Y _may,..:panic: Revised Code do not authorize a municipal col• mission; up= 14 OMiscBlackburn 06. 232 ;\E the v�o�as, � en ,out; nhe v avail himself is elf reit t Sections 113.00 to 713.13., inclusive, of „Trace a-pubbc hearin; sites:-:loktrscn v. united Enterprises. .Inc.. 160 OS poration to reserve the use of anv private prop- by the planr t�lt� the concept f of 143•.1 00(d C ae E 143005 03( D>nvides for an appeal art}•. for !attire PPublic tsse for the purpose of _The nurn the peopl ed - means aZ the from. every P.a.al . oniar, lud;caent. or decree of a extending or _iStidening -sheets. _ ning'-comm -v. Board of Elections, `: wort and from a final order of any -administrative -- - - and this • InSTORY: 127 • !67 (!76). a 1. Ea 9.17-57. andthepr( 1: 240 NE( -2d) 896 (CP). tribunal, unless. utbemwja Provided by law. 1 c subjcct to the statutory .section: b a: provision of law,' otherwise. Provided, § a 1�- Retroactive zoning ordinances planning to Lhe_.Procedure-.to_hc .•with reference. to the ercctipn of a building In viola- robibited. munictpal.�c ailing ordinances. and it tion L a zoring orrice:-.. OW-, n.v. united 140 En(cr- I P - . ioa-. of TvC 713. L'' lx: prises. Inc.; -1fd OS 140. 1 pp(2d) 40"- 140 NE(9d) I 'pec lawful use: of any dwelling, building.: or in site regi[ cels of a public hoar- t07. owver alit j structure and of any land or premises u tti t via local ¢over. - i - and law�:ul at -the tine of eaac ng a zoning Ords• - . notice r sit .lime and i..TTtts section: of injunction, gives a Property bv.a mato. (Paragraph one of the enufGbte re:n.dy-uf. fniunctian, in cases of violation boards.' -An' a .rn,' 162 OS. 447,.ii el _zttmn¢. Ordinances, gives the-uwver: uE-prope(tY 'nonce or amendment thereto, may continued, S although such rue dots not conform with- the mission ma - of v. -.the rigLt to maintain'an -action for injunctive eh e _.-roa-ivioris of Such ordinance or amendmcit, but Bene as,am It ]-IS: 100(2d)' &ii.: only. if it is. sho.cn that. such ewer "would: be - --espaecfally -dans,^ed b9..$net, violatiom McVey v - [f an such ase is voluntarily dis- planning a. • Reichley, 103 App 800(?al)..105, 159 NE(2d) ( Y _ -vided in't.r 3 1 continued for has scars or more, any future use i, 5. Under this section an intended and avowed use t of such land shill be in conformity with sections boards and of land .which ."cold violate the specific terms of a ' _ 713.01 to 713 1a, inc)tuice, of the Reviccd Cade. P11,rnrpor; a of zoning ordinance. .valid comprchenstwe zoning ordinanm`may. be -en- :The legislative authority': Of a municipal corpora- other partie enjoining violation of joined at any time inaninjunction stat brought by { sliall provide in - -a ro riate the officers of a municipality or at the instigation of i _-tj a completion, restoration reconstruction, - err PP P .: oa of zotdnB o*dfnance• anv' ovP"'•r of any conucnm:s or neicblxtrs •property I ,The sums s .Iwlatioa of zoning .oho would bt t,t dally damaged . if such use is :tension• or substitution of nonconforming:ova treasuryok g _ carried out so loo: as thew i+ :m irn?dn rat threat of I _.. - - inch violation:.. z as v. Austin Square, Inc.. 39 upon such reasonable terms as are set Forth in the tion.. of tlt> _ 9 : l:sc 49. 221 \tf3r11 725 (CPL.: ' t -zoning ordinance. and. shalt L OO(_d) 56. uuronY: J27 r I! (19), 1 I. F9 e- J7. •cal nonconforming use 6. The Power cucn to ti;c city man, cr of the <.. regional pl- .amnce was passed. kite: ch -ter of tl:^ vt°l.:_e. -n( \lansvilla to enforce ) -arti.crr to enforce -zoning 1 Research Aidc the. coon`,.- : to continue..4 ALl,:.1 -ora:n r cis racln cis u: a poses nuth� ordinances -bvan acun:t in the name of ilia village-Vslidity Of;. Pzovisinns for amnrtiz�tfon of noncon- forming uses. 22 ALR3d 113t. Inclusive.•:i pal offfcinis to enforce °rthorizar an tmn for -sod ac ion by the vi lase council CASE NOTES = planning -c ALIi:d 1135. .. - - Saaace or reetdation as rs required: sIJ'�Iui.E{Zd) 67Scr• "� O.1pP('s-d) Ol, -.I A zoning o:diaance amendment making prop- expend futi ty for injunes or death 49 00(3d) S3. alai goner, : 7 The right of a tavpaycr to bring an action in erty jmyroved with retail lou-ir:ess a noawnfa:�dni injunction in nm zann, violation case is memed �ue without a nvh[ of s:bstitution Or 61133¢.• P ments. 't^ NOT", i IIC ;"n ar Rrunws w. Cook Chevrolet. Inc- -`_bY. permission ofthezomn2 board. of •appeals and at state or an, 3-1 OApp(9d):05- f,3 OO('s"d) 161. 996 \L(^_d) ''=`30 its discretion conflicts with the provisions _oF:" this _u '.section (127.v 19. 19). that a- zoning. Ordinance "shall counties o[ - provide ' for the completion. restoration. czten• from one- t Tilsit. ! - zton or substitution. of nonconforming arcs" and 9 division tL _ intended use. s .. 14 Effect of zoning on laws and unconstitutional as to such propertY. where because - be evpl�d. S - a 713.14 . -of the fmprovcmcnt thcrca:.a ,the suzround.ag cr. ' county ret ons-oL Y charters; continuance in newly created munid- maretances.: such amendato , ordinance bears no Sion of th polity. - - substantial relation to the publie health. safety. mora>5 sources an •OYES - -` - 'S rt' ^ 14 OR i 714 12 -: inclusive, of ,the or general' welfare: Curtiss v .Cleveland, 110 APP - on see ldnB as iajunctloa139 separate Y. ` 12 00(2d) 413, 140 NE(2d)_323. such info i_ Lhe erection of a single Revised Code do not re yea] reduce ` or !} er'mandatary injunc0on anv ower rantca n xtv or c alter to a § 71.^,.31 Regional planning commissions. cary G) sfc of such structure to the - •d a corooration or e e is ati i a removal of part the:wE, alto or. - T)tc planning commis ion of: any municipal amounts It e of defendant -owner to - arum al corooratiun under Article XVIII of the t corporaLion or. group- of ^tunicipal corporations, othena rcc r 'erection--approziut,tefy p any board of township trus ccs. and the board of, Sion m'tv _. tided, to be constructed Oh�cusit^'tin^- Ansi w ere a_ new mtnici county commissioners of any counh in addch Sul tote, a: e feet from tilt street line -corporation: u created out of the. territory of e _ votiing regulations tcanaot - such municipal corporation or group of municipal -rent nr' Bul county or township car any part thereof in :"which corporatiors is located or of any adjoining county. (case w itir- ' save als therd is au loss territory zoning ragutlatiom Ftave been previously further fails to $bow any rY `may co-operate in the creation of a regional plan- and ms6e;, on atthemu- _.adopecd tu: prlusive,ovided de via s sections19.02 to 519.25,.inclu- ming commission, for any region defined as ,creed toots ase e owver of. an y. contiguous n -:The rc_ who` would be- especially -sive, of the Revised Code, such regulations may i upon by .the planning commissions and boards. to a suit for iniuncuon': exclusive -of any tcniton within the limits of a lidr such 332 125 NE(2d) 765 be adopted and l con: nucd in full force and effect - by the newly created municipal corporation with- municipal corp oration not having a planning corn, statute applying only out fo3lowing the )cocedure prescribed by sec mission, Vier ere -,tion of a rceiorlal planning A is made i10t abuildin -lions 7L3.07 to71:11, IOL'IOaIYC.. Of ilia-.(lCVliCd Undulinina lndirabs new materia! 4 -rad ted.` co ructed.-altered. ;Godo and the council of sucb newly incorporated land is being used in no -on municipal corporation may continue such zoning y 2 - (a) An application for architectural approval. Said application to be furnished by the Building Inspection Division and to r` - - include applicant's name, mailing address, location of property, legal description of property and such other information as deemed necessary by the Chief -Building Inspector and the Design Review Board. - (b) Rendered elevations of the front. sides, and rear of the building, to scale, adequately illustrating the building's character and treatment, (c) A site plan, to scale,, showing area covered by building, parking ureas and landscaping treatment. (d)__A list of exterior materials -and colors. 2. Prior to the issuance of.'a building permit within any area containing the supplemental D -R zoning, the Building Inspection Division shall ascertain that the Design Review Board has approved plans which are in substantial conformance to those presented with the Building Permit appilcatioq and- that the time limitations imposed by this ordinance or the Design Review Board have not elapsed, "If the Chief Building Inspector has any questions as to whether the plans are in substantial conformance with the plans approved by the Design Review Board, he shall refer the plans to _the _ ti ' Design Review Board for their consideration. 3 Prior to the change, of any buil'ding's exterior character, by remodeling or -alteration, the property owner, or his designated agent, shall secure the approval of the Design Review Board. 4: The Design Review Board shall impose such conditions as it may deem out the provisions and Intent necessary In order to fully carry of this' ordinance and as more specifically outlined to Section '1603-A (Criteria). A notation of tho Board's action shall -be indell by imprinted on each sheet of two sets of plans. One sot shall be retained in the Building Inspection file and one set shall be returned to the owner or his representative. r5, The Chief Building Official of the City shall Insure that all matters approved. le/ thu Daslgn 1W -1/1-0i CJdrd Jfe y5lerfAw-1 gfij C&.rf1s£zed Z?&0rdhW to the approval of'thc Board and;is hereby authorized and required to cause to be stopped any work attempted to -be done without or•'contrary to the approval of the Board and shall cause any violator to be prosecuted ' STATE E% P.EL STOYANOYP v. BERKELEY ` ]to. 3055 - -Cite as 4588-1C2d 30i .. A Not the St. Louis Police Department, - - no. .:.. STATE of Missouri sit rel. Dimiter-STOY- "-: - -ANOFF and Joan T. Stoyanotf, Q :To your knowledge-had he worked his wife, Respondents, - :- with any other law enforcement agencies in - the United States? - - - Robert BERKELEY, Building Commissioner, A -He worked with the Federal Govern-- -: City of Ladue, Missouri, Appellant. ment, the Federal Narcotic Bureau: No. 54911. - Q " And was it based on this informa- Supreme Court of 311ssnurl, -- tion that you and your partner set up: - <Division No. 2. -` - - this original surveillance at this residenceSept. 14, 1970.' - at this address? - -: Motion for Rehearing or to Transfer to Court A Yes, sir, rt ' was." En Banc Denied Oct. 12, 1070. ' In Cooper v. California, 386 U.S. 58, 59, i 87 S.Ct788, 700.17 LEd2d 730 the United ' "Proceeding on petition to compel city -States Supreme Court held that "whether .building commissioner to issue residential 7a search and seizure is unreasonable_ with building permit. The Circuit Court, St. - in the meaning of the Fourth Amendment Louis County,' George W. Cloyd, J., issued depends upon thefactsand circumstances peremptory writ of mandamus to compel -�- of each case - • --• '."-' We believe the issuance of; permit, and commissioner ap- -= record on appeal supports a finding of pealed. The Supreme Court, Pritchard, C., -that - probable cause for the search in this. case. : held denial of permit for highly mod- od-Cf.hleCray:v.-Illinois,--386-U.S. Cf. INIcCray v. Illinois, 396 U.S.300, 87-. ernistic residence in areain which-homes 1- - S.Ct 1056, 1S L.Ed.2d 62. The search was of traditional -Colonial,_ French. Provincial - - 1 - -• -- - constitutionally permissible. and English _Tudor styles of architecture - - - - - - - had been erected was not arbitrary or un- - [3]._.Appellant the trial court reasonable where basic. purpose to be . - .contends served from such denialwas general wel-._ _ "erred in itsfindings of facts and canclu- fare of persons in entire community. sions of law,". and "in finding: the-appel- lantguilty beyond a reasonable doubt" Judgment reversed. ' rr 'This is a jury-waived case. "Supreme - - Court _Rule 26.01(b), V.A:\LR., provides 1. Zoning 6=36 that the findings of the court in a jury _ _ City had -authority -to create ,archi- waived case 'shall have the force and effect -, tectural board with power to regulate archi-: _- of the verdict of a jury.' We therefore re- tectural design and appearance for purpose - view this case in the same manner as though of promoting and maintaining general con- - a verdict of guilty had been returned by x {ormity with ; style ands. design of sur- jury, and if there is substantial evidence to rounding structures. V.A.'M.S.ConsL art support the finding, it should be affirmed. -83:' 1, § 10; Sections 89.020, 89.0.10 RS,\Io 1969, - ' - - State v.. Haislip,; \Io., .411-: S.W.2d 81, V.A.\f.S. = - --- - .. State v. Clark, --Nlo.Sup.,-438 SJV2d 277, 279-280. We believe there is substantial evidence to support the conviction. i Zoning c=lot <Enactment .of-ordinances, which pur- j The judgment is affirmed. ported to create architectural board with <' - ..authority to approve. plans. for .buildings All of the Judges concur. erected within City that would conform to . 458 S.w.26-20.. - ..". rq '77-7 .306 3fo- 458 SOUTHI WESTERN REPORT= 2d SERIES minimum architectural standards of ap- art.-1, § 10; ♦Sections 89.020, 89.040 RSNMo property, str PC I arance and conformity with surround- 1969, V.A.M.S• the- gicnciav- ing structures and that would not be on- Community;;' slightly. grotesque and unsuitable , build- ate standard ings, detrimental to stability of value and Cupple s, I Cooper & Haller, Ronald L. fostered ani welfare of surrounding property, strut-. Cupples,-Gary H. Sokolik, Clayton, for in-itielpetiti tures and residents, and to general welfare (relators) respondents. valid, ,i ega and happiness of community, did not con- tionall in tli.: stitute unreasonable and arbitrary exercise -lellan, J Willson, Cunningham & 'McL no standaii of police power. V.A.M.S.Const. art. 1, Cunningham, Jr., St. Louis for appellant. to guidc_ltl,�t § 10; Sections 89.C-M, 89.040 RSMo 1969, city . acted V.A.M.S. PRITCHARD, Commissioner. . (§.89020,;) • acting the 3. Zoning C=609 Upon summary judgmcnt�thc trial court allow rcspg Courts will not substitutes :-,tir judg- issued a. peremptory, writ of mandamus to ards for..bu menufor that of city's legislative body, compel appellant to issue a residential are in exe with respect to enactment of zoning ordi- building permit to respondents. The trial 1 City of-, La nance, if result is not oppressive, arbitrary court's judgment, is that the below-mlen- Rclators and unreasonable and does not infringe tioned ordinances are violative of Scction judgment:; upon valid preexisting nonconforming use- 10, Article I,of the Constitution of Mis- posidim. the souri, 1945, V.A.M.S., in that restrictions or of the 4. Zoning C=386 placed by the ordinances on the use of prop- facts in'al Denial of building permit for highly erty deprive the owners of-.their property correct, as modernistic residence in area in I which without due process of law. Rclators' PC- of L2du , e .:, homes of traditional Colonial, French Pro- tition pleads that they applied to appellant'r urban CS vincial and English Tudor styles of archi- Building Commissioner for a building per- f SL LcuiS"' tecture had been erected was not arbitrary mi,t to allow them to construct a single i ably more, or unreasonable when basic purpose to be familyresidence, in the City of Ladue, and parable served from such denial was general wel- that plans and specifications were -sub- -si three four -fare of persons in entire community. V.A. mitted for the proposed residence, which-.three-four act . cs� , eat, . ALS.Const. art. 1, § 10; Sections 89.020, - was unusual. in design, "but complied with enacted b 89.040 RS.%Io 1969, V.A.M.S. all existing building and zoning Tegula- number,o' tions and'ordinances of the City of Ladue, centage jC 5. Zoning C=41,-42 Missouri." the hicat; Ordinances, which gave architectural for trade. board authority to regulate architectu ral It is further pleaded that relators were poses design and appearance, -which provided for refused a building permit for the construe made m; determination whether proposed structure tion of their proposed residence upon the plan Ne: would conform to proper architectural ground that the perniWwas-not approved general and design and standards in appearanceof by the Architectural Board of the City of 0 city , " f would be in general conformity with style Ladue. Ordinance. 131, as amended by said,obje and design of surrounding structures and Ordinance 281 of that city, purports to set numbcre 4 conducive to proper architectural develop- up an Architectural Board to approve plans assertc& ment of city, and which provided for dis- and specifications for buildings and strut- nances ! approval of application if proposed strut- tures erccXd.w ithin the city and in a pre- " to certain minimum city's� 1: i tore would constitute unsightly, grotesque amble t 0 1-ic onform ,powers.; e in appearance, det- or unsuitable structure architectural standards of appeara nce and bodya - rimental to welfare of 'surrounding prop- conformity; with surrounding structures, pream bl crty or residents, did not constitute un- and that unsightly, grotesque and unsuit- pleiric constitutional delegation of powcr.and pro. -able structures, detrimental to the stability NI.S.Const vided sufficient standards. V.A., of value and the welfare of surrounding is the _J ._. STATE ER REL STOYANOFF v. BERKELEY Mo. 307 v Cite as 458 S.W.2d J0.: property, structures and residents, and to fact a monstrosity of. grotesque desien, --. the general: welfare and happiness of the:`. which would seriously.: impair the value. of�- - --- community, he avoided, and that.appropri-- _ property:, in the neighborhood:' ate standards of beauty and conformity lie '- -- --" - L,fostered and encouraged:' It is asserted The affidavit of Harold C. Simon, a de- ar - in the petition that the ordinances arc m- veloper.: of residential subdivisions :. in St. _ -valid, illegal and void, "are- unconstitu- -_ -.Louis: County,. is,that heis familiar with - .3 -. tional in that theyarevague and provide relators'. upon which they seek to build lot - - no standard nor uniform rule -by which_._ahouse,;and with the surrounding. houses -_ --_ to guide thearchitectural board," that the in the neighborhood; that the houses -t - - -- . - city acted to excess of statutory powers therein existent arc- virtually. all two-story - houses of conventional architectural de- Q89.020, RS.fo 1959, V.A.\I.S.)-.in en- stgn,such asColonial,French Provincial -: :rt acting the ordinances, which "attempt to - - - - - - or English; and that the house which - - allow impose ow respondent to acsthctiestand-. ' to - ards for buildings in the City of Laduc, and relators. propose toconstructis of ultra- .al - arc in. excess of the powers granted the modern design which would -clash with .. :aI City of Laduc by said statute." and not be in conformity with any other n- - - - house intheentire neighborhood. It is �a ----Relators filed a motion for. summary, Mr. Simon's opinion that the design and - s_ - judgment and affidavits were filed in OP- appearance of relators': proposed residence -_ ns position thereto. Richard D. Shelton, May- would have a substantial adverse ;effect ¢ or of the City of.Ladue,:deponed that the upon thecmarket of: others residen- y :. ' facts in appellant's. answer: were true and -' _-values tial property in the ncighborhood.. such -- e_ .correct, as here pertinent:- .that; the City _ average market. value ranging from nt _ of Ladue constitutes one of the finer sub- _$CA,- 000 to $85,000 each. - - :r:-._ - urban. residential -areas of -Metropolitan.__.- _Ie -SL Louis, -the homes therein areconsider---. As a -part of the affidavit of Russell H. _ nd - • - - ably more expensive than in cities of com-.-, Riley,: consultant for the cit- planning and j. tb- parable size, being homes on lots from::. engincSring firm of. Harland' Bartholomew ch - -- -- -.three fourths of an acre to three or more & 'Associates, -photographic. exhibits of :th ::_ _ acres each; that a -zoning ordinance was homes surrounding relators' lot were :at- -conventional • - - enacted by the city. regulating, the height, :_ tached', To the south is the i - = ,a- .,� number of stories,. size of buildings, per- :i frame residence of Mrs. -T.R. Collins.To _ centage.of lot occupancy, yard sizes, and -'the west 'is'the -Colonial two-story -frame -- the location and use of buildings and land house of the Lewis family. To the north- z -- .re for trade, industry, residence and other pur- cast is the large brick English -Tudor home ic- poses;- that the zoning regulations were of Mrs. Elmer Hubbs.I Immediately to the :he ; made in accordance with a comprehensive north are. the -large Colonial homes of -ed - �: plan "designed to promote the: health and. -Mr. Alex Cornwall and Mr. L. Peter Wet - of --general welfareof the residents of the -zei. In substance Mr. Riley went onto h . ' 3 --City of Laduc," which in furtherance of - say that. the City of Laduc. is .one of the -� sct -, -- f - said objectivcsduly enacted said Ordinances ' , .. finer residential suburbs in the St. Louis - ---� ,ns ,. ;- - numbered 131- and :'281. Appellant also area with a minimum of commercial or - --' nc- - :-asserted in his answer that these ordi- industrial usage. .The development of res- re- nances were a reasonable exercise of the idences in the city has been primarily by um city's governmental, legislative and police private subdivisions, usually with one main t. -nd t powers, as determined' by its legislative; lane or drive leading therein (such as -es, body, and as stated in the above -quoted Lorenzo Road Subdivision which runs north preamble to the ordinances. It 1 is then off of Laduc Road in which relators' lot is :ity pleaded that relators' description of -their ' - located). '- The - homes .area considerably ing - : :- ro osed residenceasunusual in design' - p "' P gn_ _ `; more expensive than average homes .found ri _ i -:. is the understatement of the year. It is in in a city of comparable size.. The ordi--� "� 308 ]fo. 458 SOUTH WESTERN REPORTER 2d SERIES i nance which has been adopted by the City ty with the style and design of surround- of La -due is ij [pond typical of those which have ing structures' is totally unauthorized by been adopted. by a - number - of suburban `our. Enablingappeal cities in St. Louis County and in - vtdmg similar RSMo 19sq, 1.\I`$) t i8 further On_ cities throughout the United- States, the �-tended - entity: by. relators that Olydinances 131and need therefor beingbased u upon the board: p pro- 281 are invalid and unconstitutional asbe-islatioi lection of existing property values bypre- ing an unreasonable and arbitrary exer- venting the construction of hooses that -cise of I..ii of. the police power (as based entirely are in complete conflict with the _ - r - : , nance' general on aesthetic values); and that the same type of houses in a given arca. The in. are -invalid _ 'and;,i as an unlawful delegation of -` trusion into this neighborhood of -relators' unxar - ,legislative powers , (to the Architectural - unusual,.- grotesqueand nonconforming Board). law.", tors: structure would have a substantial adverse n ex rel. effect on market values of other homes Section 89.020 provides: "For the pur- _ - SAV{y in the immediate area. According to Mr. pose of promoting health, safety, morals or' -, c Riley the standards of Ordinance 131, as the general welfare of the community, the - trolC[ trol amended by Ordinance 281, are usually and legislative_ body, of all cities, towns, -and vi1- of the customarily applied in city planning work leges is hereby empowered to regulate and -1 rt. t and are: "(1) whether the proposed restrict the height, number of stories, and t Archil �.: house meets_the customary architet[ural ---size of buildings ando_ther structures, the - -i { : requirements. in appearance and design for percentage_of lot that may be occupied, the pros•c 1 - mttstt a house of .the particular type which is 'size of yards, Courts, and other open spac- - ed tha Proposed (whether it be Colonial, Tudor: cs, the density of population, the preserva-- I for th - English, French Provincial,or- Modern), tion of features oLhistorical significance, and "I (2) whether the proposed house is in gcn- and the location and use of buildings, of the = ' enol conformity with the style and design structures :.and land ..for trade,industry,: of the of surrounding structures, and (3).wheth_ -, residence or other `purposes." Section. � ' propos er the proposed house lends itself to the 89.040. provides: "Such regulations shall - with�a Proper architectural development of the be madein accordance with a comprehen-. - 1 ,i the-gc -- City; and that in. applying said standards-sive ,plan _and designed to lessen congestion '-.- i (loc.'c t the Architectural Board and its -. Chair- - in the. streets; to secure. safety from fire, `-. - 020,'R .. h - man are to determine whether the proposed panic and other dangers; to promote health -1 tothec house: will have an -.adverse affect on the andthe general welfare ; to provide ode-.. � lando�� stability of values in the surrounding 9uatc light. and air; . to_ prevent the over- ! buildit: i.-.. area." crowdingof -land; to avoid undue concen-' - '•� __ - tration of population; to preserve features - Photographic exhibits of relators'. of: -historical: `s` -tached pro- significance; to facilitate Posed residence dere also attached to Mr. the adequate'provision areac i of transportation, Riley's affidavit They show the residence water, sewerage, schools, •parks,. the. ge and other..- to be of a pyramid shape, with a flat top, public requirements. vincial c`Stich regulations and with triangular shaped windows or shall be.. mode atom' • roith reasonable considera- doors at one or more corners. tion, along thiugs,ao gc -{- t -other the character - (1] Al of the district and its pcculiar.suitabilify though appellant has briefed the - _the ` The'; point that it is a constitutional exercise of far -.Particular. uses, and .with a view to shdcri itahcii the police power for the Legislature to au- conserving Ute values of. buildingsanden- couraging the most aPProPrfate use of land thorize cities to enact zoning ordinances, it - of the `uses - is apparent that relators do not contest that throughout such municipality." (Italia - ' huildif ' added.) _ issue.. Rather, relators' position is that -- `the Sancti creation by. the City of Ladue of an Relators say_ that "Neither Sections 89: architectural board for the _ to the purpose of pro- 020 or 89.040 nor -a- other provision of - moting and maintaining 'general tonformi- � _ Chapter 89 mentions or gives a city the air of cal 'J 71 t _a � �` .c." .. ... •� .. tie r.. .' .w>'. '.,. YT v +:. - STATE E% REL: STOYANOFF v. BERHELEY ]fo. 309 - - - - Cite as 4..5 SAV.2d aW rand- thority to regulate architectural design and _:..Carter v. Harper, Building Commissioner,: d by appearance. There exists no provision pro- 182 Wis. 148, -196 N.W. 451, 454, quotes >; i.040 _ - _-. viding= for an architectural -board and -no -a .Chicago B. &,Q. Ry. Co. v. People of State con-:.. _ _ entity even remotely resembling such of Illinois exrel.-DrainageCommissioners, and . board is mentioned under: the enabling leg- 200 U.S. 561, 26 S.Ct. 341, 50 I.Ed. 596, s be- - islation." Relatorsconcludethat theCity609,.."'Nehold that the, police power of a of Ladue lacked any power to adopt Ordi- state embraces_regulations;_designed to pro-:,- rer- hely _, nance 131 as amended by Ordinance 281 mote the public convenience or the general i i t thi "and its intruson no s areai is-wholly --:- l prosperity, as well as, regulations designed, game a - ' unwarranted and without -sanction in the to promote the .public health,: the public of law." As to this: aspect of the appeal vela- morals or the public safety:"' In Marrs v. :ural -tors rely upon the 1961 decision of State City of Oxford (D.C.D.Kan.) 24 F2d 541, ex rel.- Magidson-c. Henze, -\Io.App.;-342 548, it was said, '."The stabilizing ofprop- pur- S.W.2d 261., That case had the identical erty values, and giving some assurance to Is or question presented. An Architectural Con- the public that, if property is purchased in - . the -- - trot Commission was set up by an ordinance a- residential- district, its value as such will --- ---- '- !Ail- - - of the City of University City. In its re- - be preserved, is probably_ the most cogent --" and .port to- the ,Building -Commissioner, -.the reason back of-- zoning ordinances.".-See and Architectural Control Commission disap- also People v. Cahar. Corporation ct al.,. the proved the \Iagidson application for per- Sup., 69 N.Y.S.2d272. 279 (aff'd 286 N. - . the - - . - mits to build four houses. It was comment- Y. 419, 36 N.E.2d'644) ;. Kovacs v. Cooper, -- •_. ,pac- _ -. - ed that the proposed houses did not provide judge, 336 U.S 77, 69 S.CL 448.- 9.3 L.Ed. •rea- for the minimum number of square feet, 513,:526; Nulfsohn v. Burden. 241 N.Y. ante, and "In considering the existing character 283,150 N.E. 120. In [3]. 43 A-LR. 651: -nss, - - - of this neighborhood, the Commission is and Price et al. sc.Schwafcl (Ca;.),. 92 Cal. stry, - of the opinion that houses of the character App2d77, 206 P.2d 683,645. The preamble --" :tion proposed in these plans are not in harmony to Ordinance 131 ,quoted above in part, -. shall with and -will -not contribute. to nor protect demonstrates that its purpose is to conform hen- the 'general welfare of this neighborhood" to the dictates of,§ 89.010, with reference to snon -"'_ (lot cit. 264)._. The court held that § 89.- preserving values: of ---property --by" zoning _ rice, - 020, RSNIo 1949, V.A.M..S.,.does not grant procedureandrestrictions: on the use of -alth to .the city. the right to impose upon the property. This is an illustration of what - -_ ade- landowner aesthetic standards forthe wasreferredto in Deimekev. State HiGh-' ver- buildings. he chooses to erect way Commission, bio:; 444 S:W2d 480,.484, - -` .cen- - - - - As is clear from the affidavits and at- as a growing number of cases recognizing ures - - - cached exhibits, the City. of lanae is an a change in the scope of the term "general Gate t - _. - - area composed principally of residences of welfare." In the Dcimeke case on the same - ion, the general types of Colonial, French Pro- page it is said, "Property use which offends cher a - - - vmclal and English Tudor. -The city -has sensibilities and debases property. values - -. 'font - t -- - - - -- a comprehensive plan of zoning maintain affects not only .,the adjoining property, ope - '.i •rra- ! - - - .,'- the: general character of buildings therein. owners in that vicinity but the general pub- :tier. The Jlagidson case- , supra, did not con- he as_.well because when such property y - Sider [he-effect -of § 89.040, supra, and .the valuesaredestroyed or.seriously impaired, ,• to i r italicized portion relating to the character the tax base of the community is affected - = en- of the district, its suitability for particular- and :the. public.. suffers economically as a �nd - -- - uses, and the conservation of the values of result." _ - - altes buildings. therein. These- considerations, - - - j - sanctioned by statute, arc directly related [21.. Relators say further that Ordi- a - 89: `to the general welfare of the community. nances 131 and 281 are invalid and uncon- - - i of - - That proposition has support in a number stitutional as being an unreasonable and_ar- - > au- of cases cited by appellant. Stale ex rcl. hitrary exercise of the police Kwtr.' It iii ■ - A 210 Afo. 459 SOUTH WESTERN REPORTER. 2d SERIESS argued that a mere reading of these ordi- People Y. Stover, 12 N.Y.2d 462, 240 N.Y.S. nances shows that they are based entirely 2d 734, 191 N.E.2d 272, 274.:[3]; State ex in genes on aesthetic factors in that_the, stated pur- rel. Saveland Park Holding Corp. v. %Vic - design, of pose of the Architectural Board is to main- land, 269 Wis. 262, 69 N.'.W2d 217, duciveto Lain "conformity with surrounding struc- Reid v. Architectural Board of Review of mcnt, of tures" and to assure -that structures "con- the City of Cleveland Heights, 119 Ohio proves . ai form to certain minimum architectural App. 67, 192 N.E.2d 74,77; and Oregon Building, standards of appearance." The argument City v. Hartke, 240 Or. 35, 400 P.2d 255 1 find cont j I ignores the further provisos in the ordi- 261, for pronouncements of the - principle, I f -ng o %.tli -I- nance: and that unsightly, gro- that aesthetics is a factor to be consider d t t he imc.' tesque and unsuitable structures.- detrinicn- in zoning matters. plicanL., tal to the stability of value and the welfare 0 applicati` of. surrounding property, struclunes, and [3,4]. In the matter of enacting zoning I structure'; ; residents, and to the general welfare and. ordinances and the procedures for deter- - grotesque happiness of the community be avoided, mining whetherany certain proposed struc- ance;, dct and that appropriate standards of -beauty Lure or use is in with oroffendsrounding,f and conformity be fostered and encourag- the basic ordinance, it iswell settled that not rriak,� ed." (Italics added.) Relators' proposed courts will not , substitute -their judgments # be return residence does not descend to the 'patent- for the city's legislative body, if the result r either-­wil ly-offensive character of vehicle grave- is not oppressive, arbitraryor unreasonable ommendal yards in close. proximity to such high- land does not infringe upon a valid pre- j disapprov. ways " referred to in the Deimcke case.� existing nonconforming use. Landau et al. may issue supra (444 SAV.2d 484). Nevertheless, the 'v. Levin, 358 Alo. 77, 213 S.W.Zd approval i aesthetic factor to be taken into account by [2-4] Flora Realty & Investment Co. v. to. compi the Architectural Board is not to be con- . City of Ladue, 362 Mo. 1025. 246 S.W2d Building sidered alone. Along with. that -inherent 771, 777 [1]; Wrigley Properties, Inc. et mit. -•The factor is the effect that the proposed resi. al. v. City of Ladue, %to., 369 S.W2d 397, an appeal dence would have ve upon the property values 400 [2-41. The denial by appellant ot a view. oft in the area. In this time of burgeoning building permit for relators' highly modern- jjjlBoard. : C urban areas, congested with people and istic residence in this area where tradition- 131 only V structures, it is certainly in keeping with al Colonial, French Provincial and English tially--peiri the ultimate ideal of general welfare that odor styles of architecture ire erected all mernbc the Architectural Board, in its function, I does not appear tote arbitrary and unrea- preserve and protect existing areas in portable when the basic purpose to be served Re which structures.of a general conformity s that of the general welfare of persons visions of- of architecture have been erected. The -in the entire community. constitutio area under consideration is clearly, from the record, a fashionable one. In State ex In addition to, the above -stated Purpose L City toOil( rel. -Civello v. City. of New Orleans. 154 La. in the preamble to Ordinance 131, it estab- gued,,tha� Z I-1, 97 So. 440, .444,E the court said, "If by lushes an Architectural. Board of three power.., to the term 'aesthetic considerations' is meant members, all of whom must be architects. grotesque pr a reg and merely for outward appearances, Mectings of the Board are to be open to the -the, 0 po for good taste in the matter of the beauty public, and every application for a building proper art of I the neighborhood itself, we do not ob. permit, except those Clot affecting the out- ante and d serve any substantial reason for saving that wardappearance of a building, shall be sub- formity such a consideration is not a matter ofgen- mitted to the Board alongwithplans ele- rounding vations, detail drawings and specifications. 1 proper­:iri eral welfare. The beauty of a fashionable before being approved by the Building Com- City'. residence neighborhood in a city is for the missioner. The Chairnnan of the Board prove the rt comfoand happiness of the residents, and shall examine the application to determine p opost: it sustains -in a general way the value of if it conforms to proper architectural stand- sightly, grc property in the neighborhood." See also ards in appearance and design and will be appea.ra-ury 777"77T, ani STATE E% REL. STOYANOFF v. BERKELEY - - Mo. 311 -- . _. .. - Cite as 458 9AC2d the style andareinadequateFirst cited is State es rel. in general conformity with design of surroundingstructuresand con-. Continental Oi1.Company v. Waddill, \fo., ducive to the; proper architectural develop- '318 S.W.2d 281, which held an ordinance -, C. mens- ofthe city.'_ If he so finds, he ap- _. provision unconstitutional which clothed to the the City.-. Planning - Committee..with arbi- _ proven and -returns the application -If discretion without a definite standard -_�_ •:_ Building Commissioner.he does not - or has doubt, a-full meet- -- trary or rule for its guidance, following the gen— d conformity, fining dthe Board is called, with notice of - cral rule. in Lux v. DIihvaukee Mechanics' S.\V.2d 343, 345. - -- the time and place thereof given to the ap-. Ins. Co., 322:Mo.*342,:15 as-well as in State ex rel. - ---plicant.. The Board shall .-.. disapprove the -it-determines In the Lux case, Ludlow v..Guffep, ilIo.; 306 S.\V2d 552, - applicationif the proposed ._ tothe general rule. were stated - structure will constitute. an -unsightly, -. -i- exceptions ` be situations circumstances - grotesque or unsuitable structure in to -"in .and require the vesting - 'ante, detrimental to the welfare: of sur- --.where rounding propertyor residents. If it can- -necessity would of discretion the officer charged with - make that decision, the application shall > the enforcement of an ordinance, as where -. not be returned to the Building Commissioner it would beeither, impracticable or impos- -- or - --` either with or without suggestions or rec-.;-sible to fix -a definite rule or.standard. discretion vested in the officer --- - commendations, and if that is done without where the relates to the enforcement of a police regu- •- �_ disapproval,.- the -Building Commissioner ifitheBoard's dis- -la[ion requiring prompt exercise of judg- may issue the permit. approval is given and the applicant refuses ment" (306 S.W.2d'557)• The ordinance - to comply with _recommendations, the here is similar to the :ordinance in, the Guf- wherein it was heldthatgeneral Building Commissioner shall refusethe per. for -fey case of the ordinance were sufficient. - -- mit. Thereafter provisions are made to the Council of the city for rc- standards Although it was said that neither of the an appeal - -. of thedecisionof the 'Architectural. above-stated exceptions applied in the Guf- . view -- - - Board.. ce.281 amends Ordinance Ordinan fey case, the impracticality of setting forth ' 131-only with respect to the application ini- 131 a compcomprehensive standard in- lc[dy action by the he' •- - tially being submitted. to and considered by suring uniform -discretionary. It was held _ - - allmembers-of the Architectural Board. ,city council. was .discussed. _ standards were sufficient. _ that the general - - - - - and that the procedure for determining [5] Relators claim that the above pro- whether theproposed filling station .could. - visions of the ordinanceamount town un- or wouldnotpromotethe "health. safety, -_ -- -, -`-- - ` constitutional of. power by the morals or general welfare of the commune- " - _delegation j city to the Architectural Board.--. Itis at- °:ty,,, or would or-would not adversely affect -. gued that the Boardcannotbe -given the "the character of -the neighborhood, traffic. power to determine .chat is unsightly and .conditions, public utility facilities and other. ! grotesque and that the standards,"whether matters pertaining to the general welfare"' i the -proposed structure will conform ;to (306 S.W.2d558) was sufficient to provide proper architectural standards in appear- against the exercise of arbitrary and ancon- -. - ance and design, and will be in. general con- 'trolled discretion by the city. council. tiIerc, Eormity with the style and design of sur- as in the Guffeyccase, the procedures are rounding- structures and conducive' to [he, for public hearings with notice. to the appli-, ,proper architectural development of the "the di ap- cant, not:only by the Architectural Board - t City • - • ." and Board shall .but also by the City. Council on appeal on _ prove the -..application ifit determines that the factual issues to be determined under _ _ - the proposed structure will constitute an un- the ordincen applicant's rights are , An na sightly, grotesque or unsuitable structure in enicguarded in this respect, and thus Ais- ; . t appearance, lie the welfare o is the ordinance which was eon- surrounding property or residents • •,;tinguished a 312 Mo. 458 SOUTH WESTERN REPORTER, 2d SERIES demned in State ex rel. \fagidson v. Henze, gree, and he appealed. The Supreme sa°I ' - supra. Otherwise, in the respect that: the Court, Pritchard, C., held . that refusal to -- RS: bfagidson case did not consider the purpose give. requested instructions dealing .with in- 4. C of § 89.040, supra, it should no longer be tent to make a common assault on occupant ' followed. Ordinances 131 and 281 are suf- of .premises at time defendant broke - fieient in their general standards calling through door and entered dwelling was re- .i tim "i for a factual determination of the suitabili- versible error where jury; was merely in- - - - ty of any proposed structure with refer- ._.strutted on felonious intent to do- great ! :. -- ence`.tothe character of -the-surrounding bodilyharm by assault and jury could have - _ neighborhood and to the determination of found;- considering conflicting testimony, fJ any adverse effect on the general welfare relative sizes of parties and victim's result- ! Rol - - and preservation of property values of the ant injuries, that defendant only intended community. - Like- holdingsweremade- in- to commit common assault, a misdemeanor. volving Architectural Board ordinances in Reversed and remanded for new trial. { State ex rel. Saveland Park Holding Corp. v. Wieland, 269 Wis. 262, 69 N.W.2d 217, ( and Reid v. Architectural Board of Review 1- Indictment and Information C>I 10(19) of the City of Cleveland Heights, 119 Ohio - App. -:67,192 N.E.2d il,.supra.Second amended informationcharging con_ --__,• _ _-- defendant with"willfully -and -feloniously The judgment is reversed.:- committing offense of forcibly breaking - sai - into dwelling house and feloniously assault - an BARRETT and STOCKARD, CC., con- ing a,person therein did not mislead de- cur. fendant as to charges against him where ( vat PER CliRU\\I. -- information thereafter -,set forth.- acts th charged in language of applicable statutes Qu. `` -- - - The foregoing opinion by PRITCHARD, Section 560.040 RS.Aio 1969, V.A.J1.S. an -. C., is adopted -as the opinionofthe Court. 2. Burglary C=32.:: ,- - -La ( DONNELLY, P. J., MORGAN and ha FINCH, JJ., and JENSEN, Special Judge, Effect produced by a weapon and Tela- h - - - tive,strength of assailant and victim may - concur. beconsideredby jury in prosecution for ( ,_ burglary in the first degree on lesser of- -- i - -- - fense of whether there was intent to do le great bodily harm or whether that intent )} �- related. merely to a -common assault See - tion 560.040 RSJfo 1969, VAM.S. i i' of ' .STATE of Missouri, Respondent, 3. Burglary C�6(2) _ - - - - - Criminal law 0=1173(2)V. a th i James Robert SHIVERS, Appellant. Refusal to give requested g q - th dealing with intent to make_ a .common as- i No. 55072 Sault on occupant of premises at time de- ' s - A _'=• `- - - Supreme Court of Missouri, -- Iendant-brokc=through: door and -entered -`--- hi Division No. 2. - dwelling was reversible error where, jury . -: -:1 --�, - -Oct. 12, 1970. was merelyinstructedon felonious intent -- ' to-do great- 'bodily harm -by assaultandth jury could have, found, considering con- ; - Defendant was convictedbeforethe ' flicting testimony, relative sizes-ofparties !T " - - Circuit Court of Audrain County, George and victim's resultant injuries, that defend- -as- "... at ` -- _---P. Adams, J., of burglary inthefirst de- ant only- intended to commit common .' ,-. -. - - .. .,., .:r :.:,..waw �c�r- ...—,:Yla. -" •A. Oct. 19," 197 i DI:S ii10INES SUn DAY IML,10t arc? dc.l 1 •his e� h®PP1119 Sioux C y g; - tW11 er 0' sive cits d0� wf� Ry GENERAFFENSPERGER Re'iitier stall writer : REGISTER pNoTo OY FRANK S. FOIwEIL SIOUX CITY, IA. = A court etx www ..ar rLr t struggle is under way here on R' < 4 1, ,� _ , r this question: Can Sioux City , legally barn or at ]east stall t • t _- relfr the development of a:large n ",> ,i y .AitiL NLY regional shopping center on e ti >' j ,P = ' the outskirts of lam until the nx 4 t t r completion ofa-project to re 4 L "-- t'� e r';q T.l, vitalize the downtown shop ,LIeL,tca es7' ping district?;4C. . tr�wF a General Growth Properties.- r: Iel^f -w>•r ?:,i''' - y<.; a Des dioines firrn that spe- cializes pe cializes in constructing shoe- Dina centers-.and wants: to build one here,! says no, and .has backed that uo "with a - lawsuit aeainst the city.:..- c�p��rr•_L.�7>y �•: - ''�S2a.' +MT£mE' - ... , .. , General Growth's lawsuit , ;tr�-?fi ��,• T + a-�,i,xr -..,#_ �- y,,,,, y¢ ,� t claims that. Sioux City'sfac ,,h"+�, tions so far are designed pri �.�'� Marti to prohibit competition y���j1�1 Y +'.#''• i�C..tt1� 'w! 17DJr •S-{ M by General Growth vvilh the 14 r, t,R�� u• , downtown merchants of Sioue city. i k>xw , yit rw} Tar s_ xk� r •'�J �£SI{ 9..- Seeks Injunction -General Growth seeks an in t jcnction topreventthe city t`f- „ ,dy�¢� > ..y - xr." a tonin ane from making. 8 chg tom" ate` i'ri1+5 - and asks damages loahng more than $1.5 million. -- The heart of downtown Sioux City's urban.rcoewal y ysrI - The Sioue City government. . However, me issue nas _ uuo- in the meantime, Petition.- defendant in the action filed bed to the surface this inonLh General Growlhcourt petition.+ in t':oodbur, county District In the campaign of d4�p pe 1974, on July 2"_, 1974,:. the ,City. Court. says it has acted lceal-_ for two-citv.co'unelI seatsr All Council `.adopted a-resolution t: . ly:and says General Growth's various publicapPe?r?nces of• to review its ,zoning ordi-- petition is "fatally infected the candidates, the Issue. is; nances: and:-also adopted an with conclusory alienations brought up.' Some defend the "interim development ordi- and what the city calls "hel, city's action. some attack=it.: nance." : ler-skelterx1aims." This is the gist of General This interim ordinance, says Some observers here--viav Growth's lawsuit General Growth, contains a the lawsuit as the opportunity ,On Nlay 2, ` 1974 Generat for an Iowa court to settle the Growth- made contract lob question of whether a city, purchase a'tract at thc_south through its control of zoning edge of r Sioux City,, for:and building permits. can act PI96 fW About 19 acres of the! to..-protect _.a,core ,downtown traci are within Sioux City! -- area. --- - and ahold 55 acres are out- ' There is - evidence in other side. in Woodbury County. _ _ lova cities: say some observ- , oiinker's Center" - - errs here:. that ,the failure to -_.-General .Growth :refers. to - - act as Sioux City, has in the the site as ,Younker', Cen- __. General Growth case has re- ter, " a reference to the tad stilted in the exodus of main- that ar Younker Bros., stores from downtown to salt department would-be the _ urban shopping centers'µ•ith a flagship at the site (there is a resultant slump in downtown Younker store in downtown I lax values. Sioux City Illready). Bonged Down General _Growth says when The court case is now eight it contracted to buy- Ihe,site,I months old and dragging it was zoned to permit a shop along with a. series of legal I ping center.The firm says petitions. Na quick conclusion applied for a building permiti I is seen. on July- 2, 1974. July 51, 1974, the city, rejected the ap plication. provision barring the issuance effect upon file central busi- -- of building permits forallnew ness district. r c t a i 1 commercial - devel- "Land use. regulations shall - 1 opment within the city of provide opportunities for pri- Sioux City on a site in excess vale development to innovate of 100.00 square feet.': in ways which will presen•c - That, says General Growth, and protect and not adversely barred its Younker's Center.. - affect the City's investment - "1'rohihiECompetition" this critical arca:' - Says the General`"Growth ' llight to Regulate — --- - _ petition: 'The adoption of Long-lime observers , herd+ -- - - - said resolution was- for the say the City Council: pledged --- purpose of denying plaintiff itssupport for urban renewal its right to useand develop its in the downtown area as. early - - - _ l0 acres for retail commercial as 1964 and decided then that; --` l uses, with the direct intent of the regional , shopping . area! prohibiting competition by the would be the downtown. plaintiff asretail shopping '` Says Jan Albertson, in ' area with .thea downtown mer- ber of the Sioux City City - chants of Sioux City and of Council: "We have a public- - - prohibiting--competition-with competition investment we are' toy - - - the defendant -for. tenants in protect.:. it gets down to - - the sale and development by whether the city has the right '- Ilhe defendant of.its urban re- to regulate the growthofthe newal project area c :' city.' _ . The city dentes all thg alle= Sioux City's ongoing down- gations by General -'Growth town urban renewal project, and specifically states that involving at least $16 million the building permit was rt} in urban renewal money,: has jected because it was improp- as its centerpiece now a'nety - erly filed in that .-did not Penney's store and a neiv Hil - _- have sufficient fee attached, ton Hotel. Two city-owned - -- Since the filing -of the law- parking ramps are.. open - and - suit, the cityhas begun the two more. are to be built. r The _- job 'of_reviewing and revising search is on for; at least two its zoning ordinances.additional:major stores, with I - :. ,.._ '- PelicySl:deurenLs' --- - Brandeis of Omaha, Neb.,,-re•; - -: _ _ . As part of that plan, the porledly ready to come -.into - -- - the area. city's zoning commission pub , - lished a list of a2 policy state-.';.. - - - - - ments it says define the-direc- tion of future city development - - - One of the statements says - - in part:. '•...::- . Substantial. public funds have been in., — - rested in the rebuilding of the - -. central,business district and it -.- -. is essential to the general wel- - - - fare of thecity, and its resi, ' dents and taxpayers, that: all proposals for commercial and residential _ development; ci- --- - Iher in or near the central - business district. or impacting - upon the central business dis-,. - --- - - lrict, be examined for their. . x; Ss'o ube®�' d MorgeTo tga_ d jur fincomers ecre- The program will enable families earmng PJASHIN(;TON (UPI) -Housing S - targ Carla Hills sold Thursday the govern- $9,000. to $11,000 per year to buy homes. went will subsidize 5 percent home mors- These families, primarily a Icer persons,' g 'recent market have been shut OutOfthe, .gages a< Portof a Tong -term policy :o stimu• -. - - - late home ownership for medium -income with home prices soaring near $40,000 and families. -:--- - - - - Interest rates of said percent. - - In a program reminiscent of .federal Mrs. Hills said a majority of the people pression plans s.- Hills said than e federalthe rgov eat ern- for a few e* who will years but eveeligible ntually wonly eill work out I f ment would provide Interest -subsidies :for ___ of the subsidy program as their incomes be $175 and $215 per rise. families eaming f . week. :. - - _ - . $10,000 "No FrllW' Houses -. . Mrs. Hills, who announced the policy Although the cost Eo the government will ' change at her first news conference since �: a relatively modest $2.64' million -over i becoming secretary of Housing Urban - - Development eight months ago, .said the the next a years, Mrs. Hills said a would program to begin. early next year will be a -: stimulate about $6.5 -billion in new con- struction. If '-major stimulus to tY.e housing industry and More' - -importantly, it would quadruple ' - will help reduce depression•levelunemploy- -. rthe number, of medium -income houses on , ment rates among construction workers. the market. Mrs. Hills said there are only Earlier,Hllls said the 5 percent mort- 60,000 houses for sale in the entire country j gages will be applicable to new and rehabil- for less than $30,000. _ - hated single family homes.. _ " The federal program is designed to ere-: in order to qualify, :a,family's adjusted --_ ate about 250,000 new or substantially ren—centgross income could of the median income for thno more e than ovated houses. - " -- �. The new program is based on the•popu•: N.Irs. Hilis said the bulk of the homes eli- lar-' Section 235" home construction plan rmer-President:Nixon shut down in' gible. for the new. governmentthat fost was too high . subsidy, will ��uary 1973, alleging Its co be new. Although builders have contended they-forthe government to continue.• - can no longer construct a house for less The major. change in the approach to be than $35.0 because of high land. costs,- taken now is that down payment require - Mrs. Hills said she was told by the industry mems of the home buyer and the mortgage, that a "no frills' home could be constructed interest rales_nre considerably: higher. Un-', - - - for about S 17,000 less- - der the 235 program, many people inexpe• - The ceilings on mortgages on the homes - - rienced-: in handling their money- affairs - are 528,600 in high-cost areas for large fam down were able to buy homes. for S200 doand ilies and 521,600 .for new homes for small mortgage interest rates of 1 percent. . - - efault families in imver-costregions. - c - - This � dcontributed is in Chicago and other cities in. Based on "Section 235' volving government officials and real estate home buy d speculators who duped inexperience The new program will requireworthless - ars receiving the subsidies to. make down homebuyers Into purchasing , worthle• j -. property. - _.lTvyments of about 51.5011. - - 'l QUADCRY m11•1, OCL'21.1915 Dayegarl- aaad, Iowa Elde rl HSM may,.` Lffl.e upen -n -1-977 nancing the construction. % T Ward, said that "on the sur - By Paul Davies ;- Zeck said Hning up !inane . face'.' there appears to be no. A federally subsidized eld. Ing will not be a major prob- < problemwith the rezoning, erly;housing facility in Day. lem. The firm had proposed. _ and he plans to vote for it enport-should be ready for to finance its facility through His ward includes the hous- opening in the spring of 1977, the new Iowa (lousing Fi- Ing site. - one of Its developers said nance Authority. But HUD of- HUD's selection of a -pri- " - Monday'. after his firm' re-- ficials noted the state agency "vale -company's proposal for - - - - ceived the grant to build the Is not In operation. and said it eldetly> housing could :leave 2 housing. - Is "at the present time not le- the city government without Dwight Zeck, one of the gaily acceptable." any control of: the housing i owners of Housing Associates The- state financing still projects operation. of Iowa, said the company in- may be possible, Zeck said, But Zeck said Monday that ' tends to - move rapidly ; and : adding that the company still"we do want to explore with `hopes to break ground early can fund the housing through 'the (city) Housing Commis - next spring to build the 120. conventional means (borrow- sion and the city any, ways unit housing complex on the Ing from a bank or savings they want to participate_" west side of the 3300 block on and loan association). Housing commission i <. Spring StrceL The site Is im- -' - it also appeared Monday chairman Robert C. Arnould mediately south of Korth that the zoning change will be said he was unsure how much Gate Shopping Center. obtained easily.. Housing As- Involvement the city is enti- The .company will build - sociates previously, had ap- tied to legally., the housing with a grant from piled for a change to R -5h1 "I • think we certainly � the US Department of Hous- multiple family zoning, . and should have some Input_ In _ Ing and Urban Development the city council held a public this thing," he added. (HUD).'The grant award was hearing on that last week. Mrs. Kirschbaum said. announced Monday by 1lnyor .Some nearby. honwowners HUD also will require clarifi-� Kathryn Kirschbaum.: - - -have objected to -the change ,..cation of the company's. op-; Mrs: Kirschbaum noted from R-2 single family zon- lion to buy the site and that HUD set five conditions Ing, but others have said they changes In the building de - on the grant,. including that a would not object If the change sign and location of parking zoning change be obtained for Is permitted only for the eld- spaces. the six: -acre site, and the firm erly housing project Housing Associates of finda different means of fi- Aid. Lester Jurgen, R -6th_. Iowa is a partnershipof its l - Wiseoasia-based cotapaay to A federal great bas 126apartment Dees awarded to a elderly housing Complex In Davenport 6WId this two.story, be located west of Sprlag Street. soatb of North Gate The facility The f acil Center, and Weald be built by Hoasla8 ! ssoclates d Iowa. Ingi 17, should push for more elderly ,architects,- Zeck and other facilities to at facility. which Is to include cr amount is needed to pay the landlord the standard . need c mI think that there's Martinson Inc., Madison, Nts., and lack the crossing Point• 118 onc•bedroom apartments two units with two bed- rent. Dallas $. Ellenberger and Albert ' ' 'As' designed , the parking -and along the i eem5. Both major -party cand[• said they _George, -thc.Demo- cratlC candidate, said the city ' • whiff, both of Ankeny, Iowa. - The firm's proposal was to to St provided Swaspring Spring Street side of the site. The elderly tenants will •pay_a percentage of their In. dales for mayor were-. happy that HUD and more hous-,: should 'ng if this inject is tilled. lie � - build a two-story, wood -frame -A site planshowtd trees and for plots in the --cCoomincome�orer tnn�of a decision on the yf arLend 1 liand - ed the city's - -- - building.:. Four apartment wings would form an X -shape room gatrden rear. buadjt as per cent LUas grante� bl tthe u eldtrly housing facility usual- ly has had some vacancies. - tors. a `kilclob- with emmun are oe boor Iand l Into tlhe re is HUD adds whalev can candidate, said city . by. co Y room n walls City of Iowa M /IORA►N DATE: October 21, 1975 TO: Dennis Kraft, Director`DCD Neal Berlin, City Manager FROM: Lyle Sey deli Housing'Coordinator RE:- 202 Elderly Housing Johnson County Regional The information sheet provided, by er 14F 1975 contains some Planning 'Commission dated OctobHousing Program. Its information On the'202`Elderlquestionabl6. TT a sheet s significance to Iowa City-is 24,r ` based on information ch was an in the Sep Federal Register, which was an invitation Summar bof the program ,.; requests for 202 housing. A brief summary follows: provided a• Section 202 of the Housing Act of 1959 for direct loans from the U_s_ Treasury to qualified non=profit organizations for the purposes of constructing handicapped and disabled persons/_ enerally at 3.5% for a'30-40 year - housing forThe-loly, ro ram along families. The 'loan was g period. The freeze of 1973 halted this p g with all others. ment_Act of b, The Housing and Community Develop 1974 re -activated the program, however, the funds set aside for this program were P1a�ice. The -ted. HUD rulesowere re -activate the program vehicle, changed to make -the program an interim financing to .the the- changed a construction loan only and ,tied directly section -8 Housing Assistance different mean applicant (Borrower) to obtainanddreturnnthe loan for the long term Permanent financing The `within two -years after completion of construction. field on outstanding marketable arable construction loan is to bear an interest rate which is the average market y oblig plus l� per_annum. (I believe ations of the United States with maturities The e ob the loan maturity, date, p 4g that today that would equal about 8'� to 8 3� ) rules and; guidelines were announced in the Federal Register, August 20, 1975. 24, invited C. The Federal Register, September - 1975. The request goes direct to requests for fund reservations tobesubmitted not later than November 14, ublication further'stated contract Washington. This p for as authority undehiseset asidelwillebeebeyond that currently) applicants. allocated. TABLE OF CONTENTS PAGE SECTION 1. ENACTMENT, FINDINGS OF FACT AND LEGISLATIVE INTENT 11 1-1_ Enactment Clause 1-2. Findings of Fact 1-3. Statement of Legislative Intent 2 SECTION 2. GENERAL PROVISIONS 3 2-1. Definitions 3 2 -2. Lands to Which Ordinance Applies 4 2-3. Interpretation 5 2-4. Disclaimer of Liability 5 2-5. Adoption of the Official Flood Area Map 6 SECTION 3. FLOODWAY DISTRICT (FW) REGULATIONS 6 3-1. 6 3-2. Permitted Uses 6 3-3. Uses Prohibited in the Floodway District 6 3-4. Uses Permitted By Special Use Permit in the Floodway District 7 SECTION 4. FLOODWAY FRINGE DISTRICT (FF) REGULATIONS 7 4-1. 7 4-2. Permitted Uses 7 4-3. Uses Prohibited in the Floodway Fringe District 9 SECTION 5. SPECIAL USE PERMITS 9 9 5-2. Standards Relating to Special Use Permits in the Floodway 9 5-3. Application for Special Use Permit 10 5-4. 10 5-5. 10 SECTION 6. NON -CONFORMING USES SECTION 7. FLOODWAY ORDINANCE ADMINISTRATOR 12 7-1. 12 SECTION 8. VARIANCES 12 8 8-2. Recording of Variances 13 TABLE OF CONTENTS (continued) PAGE 8-3. Notice of Granting of Variance 8-4. Variance for Historic Places for Basements and/or Storm 13 Cellars]*13 . 8-5.; Final Approval' 8-6. -Appeals to -the Court - 13 13 SECTION 9. _AMENDMENTS 9 -1. ---Duties of the City Council of Iowa City 13" SECTION 10. ABROGATION, GREATER RESTRICTIONS AND SEPARABILITY 14: 10-1. Abrogation and Greater Restrictions 10-2.= Separability 14 14` * Optional combine with and qualify the Zoning Ordinance regulations for the - zoning district in hezoning,district'in which such property is located. Any use not per - mitted;by the zoning regulations shall not be permitted in the Floodway District or the Floodway-Fringe District and any uses permitted by the zoning regulations shall be.pernitted in these districts only upon meeting conditions and requirements'as-prescribed in this -Ordinance. - SECTION 2. GENERAL PROVISIONS 2-1. Definitions Unless specifically defined below, words or phrases used in_ ts_ Ffrd1nance shall be interpreted so as to give them the meaning they - have in common usage and to give this Ordinance its most reasonable application. A. Equal Degree of Encroachment,- a standard applied in determining the location of encroachment limits so that flood plain lands on both sides of a stream are capable of conveying a proportionate share of floodflows. This is determined by considering the 'effect of encroachment on the hydraulic efficiency.of-the flood plain along both sides of,a stream_ for a significant reach. B. Floodor Flooding - A general and temporary condition of partial or com- plete inundation of normally dry land areas from: (1) The overflow of inland waters.- (2) aters. (2) The unusual and rapid accumulation or runoff of surface waters from any source. C. Floodway - the channel of a river or other watercourse and the adjacent land areas that must be reserved in order to discharge the 100 -year flood without cumulatively increasing the water surface elevation more than one foot at any point. D. Floodway Encroachment Lines - the lines marking the limits of flood ways on official Federal, State and local flood plain maps. E. `Floodway Fringe District the land area located between the Encroach- ment Lines of the Floodway District and maximum elevation subject to inundation by the 100 -year flood as defined herein. F. Floodproofing - any combination of structural and non-structural additions, changes, or adjustments to properties and structures which reduce or eliminate flood damage to _lands, water and sanitary facilities, structures and contents of buildings. G. Mobile Home Park - a parcel (or contiguous parcels) of land which has been so designated and improved that it contains two or more mobile home lots available.'to the general public for rent or sale and the placement thereon of mobile homes for occupancy. H. New Construction - for the purposes of flood plain management regulations, means construction started after the effective date of a flood plain management regulation adopted by a community.` -3- "- B. When approved by the City Council of Iowa City, Floodway and :Floodway Fringe Districts so established shall be added.to and become 'a part of the -Iowa City_, Official Flood Areas Map Series, and the requirements. of this Ordinance shall become applicable to"lands within the.districts, effective on the date the districts are.established. . C. In appropriate cases, an amendment may be made to the:Official Flood Areas Map by the City Council of -Iowa City, -The existing location of any Floodway or Floodway ,Fringe _,District boundary may be amended in cases -where: (1) A flood control project of the Federal, State,`Councy or City government has substantially altered the flood hazard; (2) Flood data indicates that the boundaries of either of the Districts as shown on the Official Flood Areas Map are no longer current; or (3) A private individual, corporation, firm or government; agency has submitted plans to -the City Building official for a channel improve- ment or relocation which would affect the location of the existing district boundaries as shown on the Official Flood Areas Map. A channel improvement or relocation requiring an amendment to the Official Flood Areas Map: -shall not be allowed until the amendment' - - to the Official Flood Areas Map is:approved. D. Rules for Interpretation of District Boundaries - The boundaries of districts shall be determined from informationpresented on the Official Flood 'Areas Map.- In the absence of other information, boundaries shall be determined by scaling distances on the map. .Where interpretation is needed as`to the -exact location of the boundaries of the district as shown on the Official Flood Areas Map__(for example, where there appears _ to be.a conflict between a mapped boundary and actual field -conditions) the City Engineer shall make the necessary interpretation and direct that map district boundary corrections be made where he finds that such are required. In such instances, the Flood -Protection Elevation shall be the governing factor in locating the district'' boundary on any property. Any person contesting the=location-of;the district boundary shall be given a reasonable opportunity to present the -case to the Board of Adjustment. 2-3. -Interpretation In their interpretation and application, the provisions of this Ordinance shall be held to be minimum requirements and shall not be deemed a limitation or repeal of any other powers granted by State Statutes. 2-4. Disclaimer of Liability The ,degree of flood protection required by this Ordinance is considered reasonable for regulatory purposes and is based on engineering and scientific methods of study: Larger floods may occur on rare occasions or flood heights may be increased by man-made or natural -causes, such as bridge openings -restricted by debris. This Ordinance does not imply that areas outside the flood hazard districts will be free from flooding or flood damages. This Ordinance shall not create liability on the part of Iowa o- City or any officer or employee thereof for any flood damages that result from reliance'on this .Ordinance or any administrative decision lawfully made thereunder. -- 2_5. Ado tion of the Official Flood Area Map The Iowa City F0oodwaylFringe DistrictFlood Areas s�andoothertpertinent data duly slherebyned Floodway art of 'this Ordinance. adopted by reference and declared to be a p SECTION 3. FLOODWAY DISTRICT (FW) REGULATIONS waterc er er 3-1. The Flooadaacenttland areasethat must cbennel reserved inof avorder tohdischarge,thee and the J 100 -year flood without cumulatively increasing the water surface elevation more than one foot at any point. 3-2. Permittees The following uses shall be permitted by right within the Floodway District to the extent that`they are otherwise permitted by the _Zoning Ordinance. A. General farming, pasture, outdoor plant nurseries, horticulture, ry, game farm and other similar agricultural, forestry, wildlife sanctua --,wildlife and related uses. B. Loading ,areas ,'parking areas and other similar uses provided they are no closer than 25 feet to the stream bank. C. Lawns. gardens, play areas, bikeways, pedestrian pathways and other similar uses. D. Golf courses, tennis courts, driving ranges, archery ranges, picnic' grounds, parks, hiking or horseback riding trails, open space and other similar private and public recreational uses. ilities E. Streets, overhead utility lines, creek and storm intakecstructures sewage or waste treatment plant outlets, water supply and other similar public community or utility uses. F. Temporaivals or similar ry facilities such as displays, provaleof thes. n Building Official. transient amusement enterprises upon app G. Boat docks, ramps, piers or similar structures. H. Dams, provided they are constructed in accordance with approval by the Public Works Department, the Iowa Natural Resources Council and other - Federal and StateAgencies. 3-3. Uses Prohibited in the Floodway District; A. Any fillencroachments, new constructionand substantial improvements ofexisting structures which during re , recurrencein any nofease in the 100fyear. flood heights within the community discharge. -6- B. Any portion of a new mobile home; park, any expansion to an existing mobile home park or any new mobile home not in a mobile home park. C. The placement of any artificialobstruction except for those uses listed in Section 3-4 unless a special use permit has been obtained in com- pliance with Section 3-4. 3-4. Uses Permitted By Special Use Permit in the Floodway District The following uses may be permitted within a floodway district Upon approval of a Special Use Permit; however no -use shall be allowed in the Floodway District which would result in any increase, in flood height within the community during the reoccurrence of the 100 year flood discharge. Consideration of the effects of a proposed use shall be _based on a reasonable assumption that there will be an equal degree in encroachment extending fora significant reach on both sides of the stream: A. Any use or accessory use employing.a structure;'_ however no structure shall be allowed under any conditions in the Floodway District which is designed for human habitation. B. Open storage of any material or.equipment. C. Underground storage for fuel or flammable liquids. D. Parking, loading areas and other similar uses when located less than 25 feet fromthestreambank. E. Other uses similar in nature to those listed in items A through D above. SECTION 4. FLOODWAY FRINGE DISTRICT (FF) REGULATIONS 4-1. ` The Floodway Fringe District consists of the land area located between encroachment lines of. the Floodway District and the maximum elevation subject to inundation, by the 100 -year flood. -1 4-2. 'Permitted Uses The following uses shall be permitted within the -Floodway Fringe 0istrict to the extent that they are otherwise permitted by the Zoning Ordinances: A. All public utilities and facilities such as sewer, gas, electric and water systems provided they are located and constructed to minimize or eliminate flood damage. All new or replacement' water supply_systems and sanitary sewer systems shall be designed to minimize or eliminate` infiltration of floodwaters and discharges, from the system into flood- waters. On-site waste disposal' systems shall be located so as, to -avoid impairment of them or contamination from them during or subsequent to flooding. B. New construction or substantial improvement of residential structures provided the lowest floor, including basement, ,is elevated to or above the level of the 100 -year flood;_(unless the building permit applfcart is granted a variance for a basement and/or storm cellar in accordance- • All buildings, including or homes,-. with Section revent'flotation, collapse or lateral must be designed and anchored to p movement of the structure. New construction'or substantial improvement of non-residential structures C basement, is elevated to or above provided the lowest ,floor, including the level of he_ 100-year flood, or together with related utility and e 1 sanitary facilities is shall be done in accordanceir above hwithVel the standard0s for flood. Floodproofing s - completely Corps of Engineers Publication entitled flood proofed structures contained within Sections 210.2.1 FP 1 or 210.2.2 FP 2 of the _U.S. Army "Flood-Proofing Regulations", June 19729 GP0:19730-505-026 edition or any subsequent edition hereto. 41hen newcons rofesizes f-tructioE gineern or sornArchitect improvement of non-residential structur eredto eP utilizes fl adequate conform to this Or methods used are`imPastaand uplift shall certify that the'floodprooressures, velocities, ths, p year flood and a record to withstand the factorslood Official. forces and other factors associated with the he y of such certificate shall be maintained iota mobilehomepark, expansions D New mobile home parks, mobile Or re not mobile home parks or repair or reconstruction or percent improvements to existing mobile home pirks'where such repair or reconstruction or of existing improvement of streestrut eetsliutilitiee and pads lbefors or e the repais So r or of the -value of the reconstruction or improvement has cortmenced provided that: installed in accrd 1. Ground anchors for tie-downs are sociation Standardsance with. the Mobile Home n pier, withi 2. Stands or lots are elevated on c lain so that the lowest floor of the mobile home will ompacted fill or on the flood p be at or above the 100-year flood level; 3. Adequate surface drainage and easy access for trailer hauler is provided; and piers, lots are large enough to q. In the instance opierefoundationvation or, s are placed on stable soil no permit`steps and P art and steel reinforcement is provided for TV than ten feet apart piers more than six feet high.- mobile home parks where ce E Mobile homes moved into existing in concrete pads for the placement of mobile homes arconnectione are in the `flood plain, and whereistreets'and utility in existence, provided that: a. Ground anchors for-tie-downs are required; ome is being located in a flood special -flood hazards is_d_i_sclosed to the b. The fact that the hmobile purchase plain area having chaser-or leasee in the mobile home and/or lot p contract, deed or lease; and c. An evacuation plan tndlcatln9 alter veficular access and escape routes as filed with the C1v11 Defense authority of Iowa City". *.optional rain on a minimum of one. percent grade, F. Fill material graded to d d against erosion: Any fill material provided the fill is protecte on which a structure is to be shall be extended at grade ten feet beyond the limits of the structure or foundation and shall have side slopes no steeper than one and one-half feet horizontally to one foot vertical.' G. Any use permitted and as regulated in the Floodway District. 4-3. Uses Prohibity Fring ed in the Floodwae District Below the level of the 100 -year flood, aboveground storage or processing of materials that are flammable or explosive or which could otherwise be injurious to human, animal or plant life in time of flood. SECTION 5. --SPECIAL USE PERMITS be 5-1. Uses listed established inlyn this Or inancealsorequiring theCityal CouncilofsIowa Citermity subsequent approv to the recarmendation of the Planning and -Zoning Commission 5-2. Standards Relating to Special Use Permits in the Floodway A. Maintaining an unobstructed floodway capable of carrying the 100 -year flood without increasing heights more than one foot ci any point an integral purpose of this Ordinance. As'such, special conditions apply;to Floodway Special Use Permits as follows:` 1. Any fill proposed to be depositedinthe Floodway must: -be shown to have some beneficial purpose and the amount placed shall not be greater than necessary to achieve the purpose demonstrated on a plan submitted by the applicant. Any `fill or other materials' shall be protected against erosion by rip rap, a'vegetive cover or bulkheading. 2. Structures. Under no conditions shall structures in..the floodway, be_designed for human habitation. Structures shall have a low flood damage potential and shall be constructed and located on the building site in a manner which minimizes obstruction of the flow of floodwaters. Whenever possible, structures shall be placed with the longitudinal axis of the building parallel to the direction of the floodflow and adjacent structures shall be placed approximately on the same flother adjacent oodflow line of structures. All structures shall have the lowest floor, including basement elevated to or above the level of the 100 -year flood or together with attendant utility and 'sanitary°facilities, shall be floodproofed to or above the 'level of the 100 -year flood. Any structure allowed by a special use permit shall be firmly anchored to prevent flotation, collapse or a lateral movement of the anchored struto prove h may .result in damage to other structures, restrictions of bridge 'openings 'or restrictions ofnarrowsections of the stream or river. -9- processing of materials that are buoyant, flammable., lamm ble., • ife 3_ The storage -or p, explosive or could be injurious to itedaunderiall_ conditions; however during times of flooding ment may be allowed if not subject storage of other mat loodssand or ifJiirmly anchored to prevent flotation - to'major damage by. readily removable from the area within the.time available after or if flood warning. 5-3. A lication for S ecial Use Permit - the ion „then forwarded to the review and consideratbe filed withrecomnendationand Applications for special use permits shall Zoning Commission for with City Council . - the nature, The shall submit to and sndrawnato scale showingion-completed ro osed structures, forms together with four sets of P measures, and the relationship of location, dimensions and elevation of theing lot, existing or P l rotection fi11, storage of materials, floodway and the above to the location of the circumstanceslnecessitate de tionalainformiatr flood ioos elevation. Where special the applicant shall furnish such of theandlZoning:Commission for the evaluation as is deemed necessary by the Planning of the effects of the proposed use upon flood flows such as: typical valley cross-section showing the channel of the stream, A. A each side of the channel, and hi elevation of land areas adjoining the proposed development, and high sectional' areas to be occupied by -- - water information. pertinent. B. Plan (surface view) showing elevations or contours ti the ground; special structures. fill, or storage elevations; size, location the on and ihotocation arrangement ofallproposed and existing structurefacilities,tp'_location and elevations of -streets, water supply, sanitary showing existing land -uses and vegetation upstream and downstream, soil types, and other pertinent information. C. Profile Showing the slope of the bottom of the channel of flow line of the stream.floodproofin9, Specifications for building construction and materials, D. `'dredging, grading, storage of materials, filling, channel-ifacilities. water supply, and sanitary E. Additional information as may be required. lication, and of the 5-4. The Planning and Zoning Commission on,sh toethe Public WoPks Department for prior to formulatinglementalinformati n� shall transmin it it one copy application and Supp technical.assisocitiesneva sating the ousnesspofPfloodPdamage to theect in user, the to flood heights and vel adequacy of the plans for protection and other technical matters. 5-5. In passing on an application for a special use permit the Planning and Of the; proposed use Zoning Commission and the City tll evaluate theasuitabill litq the specific flood hazard at t and Zoning in relation totheflood hazard. In addition, the Planning _ -10- Cani;sion-and the City Council shall consider the-following-factors al- though not limited to such factors. rials may be swept on to other lands or down- A. The probability that mate stream to the injury of others. B. The prof used water supply and sanitation systems and the ability of these systems to prevent disease, contamination and unsanitary con- ditions. C. The susceptibilef Of effect ofesuchPosed damage t lthe individualand its nowner,tents to flood damage and the D. The importance of the services provided by the proposed facility to the community. E. - The availability of alternative locations not subject to flooding for the proposed use. F. The compatibility of the proposed use with existing development and -development anticipated in the foreseeable future. plan and G. The relationship of the proposed use to the comprehensive flood management program for the area. the property in times of flood for ordinary H. The safety of access to emergency vehicles. i. The expected heights, velocity, duration, rate of rise and sediment transport of the floodwaters expected at the site. SECTION 6. NON-CONFORMING USES 6-1. A structure ohouthisfOrdinance�,rbutrwhichiissnot �in conformity withch was lawful the becoming subjectbe continued subject to the following` provisions of this Ordinance may conditions: edenlarged or altered in a way p, Such use shall not be expanded, chang, which increases its_non-conformity. it shall B. If uch use is nots sthereafter beaused foror anytinueusecom forming use, C. if suchu seoisthesbuildingaoropremises shallr twelve (12) con-formthishOrdinance. fut D. If any non-conforming use or structure `is destroyed by any means, including flood,ceed550to the percentxofnthehmarket value ofat the cost of rthe would structure equal or ex --before the structurewasdamaged; the following regulations shall apply the structure may be rebuilt, if the structure is in the Floodway, however it shall not be expanded, changed, enlarged ar zlter� - p< in any way which would create_ an obstruction to water flow greater than that which' existed` before damage to the structure ' occurred. Upon reconstruction, the structure shall be adequately and safely floodproofed'or elevated to -the level of the 100 -year flood. 2. If the structure is located in the Floodway Fringe District, it may be reconstructed provided it ,is adequately and safely flood - proofed or elevated in conformance with this Ordinance. 3. Any mobile home or -mobile home park that is destroyed by any means s such that the cost of restoration would exceed 50 percent of the market value of the structure prior to damage; then such mobile home or mobile home park shall not be rebuilt if - - it is located in the Floodway andifit is -located in the Floodway Fringe, it shall be rebuilt inconformancewith this Ordinance. 4. Any alteration, addition, or repair to any non -conforming structure which would result in substantially increasing its flood damage shall be protected by floodproofing or elevation. SECTION 7. FLOODWAY ORDINANCE ADMINISTRATOR 7-1. This Ordinance shall be administered and enforced _by the Building .Code Official.' At all times when a building permit is issued for a new structure or a substantial improvement of a structure located within the Floodplain, the Building Official shall list on the building permit the elevation of the basement and first floor of all structures or, if no ` basement exists, the elevation of the first floor.` SECTION 8. VARIANCES 8-1. The Iowa City Board of Adjustment shall assist in the interpretation of this Ordinance and shall judge where variances from the provisions of this Ordinance may be granted. A. Administrative Review The Board shall hear and decide appeals where -_ it is alleged there is an error in any order, requirement, decision or determination made by the floodway administrator in the enforcement or administration of this Ordinance - B. General Requirements for Granting of a.Variance - In all circumstances variances -may only be granted upon (1)'a'showing of good and sufficient cause, (2)"a determination that failure to grant the variance would_ result in exceptional hardship to the,applicant,iand (3) a determination that the variance issuance will not result -in increased flood height;, additional threats to public safety, extraordinary public expense, create nuisances, cause fraud on or Victimization of the public or conflict with any other local laws or ordinances. No variance shall have the effect of allowing in any zoning district uses prohibited in that `district `by either this Ordinance or the Iowa City Zoning Ordinance. 12- 8-2 Recording of Variances In all circumstances a variance from the Ordinance may not be issued unless a notice is filed with the County Recorder and the recipient of the variance executes an agreement whereby he will be bound to insert a notice on any future'deed'or other conveyance that the property :is located in a -flood prone area. The notice required to be filed with the County Recorder and inserted on any future deed or other conveyance of the property shall contain = a -statement of the number of feet that the lowest non-floodproofed_floor of - low the -100 -year flood level and that actuarial the proposed structure is be flood insurance rates increase as the first floor elevation decreases. 8-3. Notice of Granting of Variance Whenever a variance is granted from the Flood Plain Ordinance, the City of Iowa City -shall notify; the Federal Flood Insurance Administrator and the Iowa Natural ResourcesCouncil of the issuance of thevarianceand justification for issuing -such. 8-4. Variance for Historic Places [or Basements and/or Storm Cellars]* The City of Iowa City Board of Adjustment may permit variances from the Flood Plain Ordinance for a structure listed in the National Register of Historic Places if such structureis to be restored or reconstructed. [Upon approval by the Federal Flood Administrator,` the City of Iowa City Board of Adjustment may grant variances for basements or storm cellars below the 100 year flood -level for residential structures located in the Floodway Fringe Area. Such variance may be granted only upon conformance with the variance procedures stated in Sections 8-1 through 8-3 and each variance issuan11 ce must include a`statement that Iowa City,has been granted exception by theFederalFlood Insurance Administrator for allowing base.- any ments-or storm cellars below the 100 -year -flood level. In awithll the Stan basement and/or storm cellar will be designed in accordance with the standards roofed structures contained within Section 210.2.1 FP for completely floodp 1 of the U.S. Army Corps of Engineers publication entitled "Flood -Proofing Regulations", June 1972; GPO 19730-505-026 edition or any subsequent edition thereto and such floodproofing measures shall be certified as adequate by a registered architect or engineer.]* 8-5. Final Approval All decisions of the Board of Adjustment to grant a variance shall be submitted to the Iowa Natural Resources 11 Council for final. approval. The decision to grant a variance by the Board 'of Adjustment shall not be binding until such approval_is -obtained from the Iowa Natural Resources Council. 8-6. Appeals to the Court - f the Board of Appeals from any decision oAdjustment may be taken by any person 'or"persons jointly or severally aggravated by any decision of the Board to the Court. SECTION 9. AMENDMENTS 9-1. Duties of the City Council of Iowa City The City Council -of Iowa -City may, from time to time, on its own motion -13- optional W�I - STAFF MINUTES 1 - October 10, 1975 Agenda items for the week of October 13th were discussed. An executive 3th regarding Urban Renewal negotiations. sessionisscheduled on Monday the 1 Two hundred bikes are presently'stored`in the old Post_Office. If the Post Office is sold there_is'a question where-the-storage of bikes will be handled. Routinely we would schedule -an auction in January of 1976. This would allow the weather to cool therebyreducing the number -of;people riding bikes. Julie Zelenka reported on the last minute preparations for the Sculpture Dedication on Saturday the 11th. The trash on Iowa Avenue had been emptied by Thursday ent will again check the area today.- Parks afternoon and the Refuse Departm and Recreation will supply more refuse cans for the Dedication. Dennis Showalter will check early Saturday morning to be sure that the area l s clean and make any necessary arrangements to have it picked up prior to the Sculpture Walk. Chairs and loud speaker arrangements have been made.- Departments of Finance, Public Works, Parks and Recreation and Community Development will be involved in the discussion of the Design Review Committee procedures at a-future date. Supervisory Development Course scheduled for the 8th, 9th, and 10th of October by the 'Institute of Public Affairs was canceled due to the very low turn out. heduling are October; 22 thru the 24th, October 29th Three alternative datesforresc thru the 31st and November 3rd thru the 5th or November 5th thru the-7th. When ^ employees met at the Highlander in March of this year supervision was a high pri- ority item. If this is not now the case this should be reviewed and new priorities should be established. It was the general feeling that the Functions of Supervi- sions'Course offered by the-Institute of Public Affairs was a good review of ents to supervisory techniques and allowed with1eachsoar ther�n Departmentdhe-adsmwere encouraged communicate.supervisory practices to suggest employees in their` areas that should attend this coursracticesabut that= sized this course is not to punish people for their supervisory p thisisto ;promote growth and development in supervision. Linda will be contacting department heads to schedule a'definite date and time and employees who will attend As Neal meets with department heads in weekly meetings they are expressing - concern that the Council is not aware of workloads in their departments. :Attention should be paid to the work that is being generated by the Council so this can be ahem. Your monthly reports to taken back to the City Manager should include accom- plishments from thepreviousmonth and planning for,the current month and future month.` This report should also include items that were planned butnot accomplished Neal wi11`be then prepared to-speak to the Council regarding these matters. Citizen's service requests has,been discussed in the past. Some departments feel that if we have a specific request form this would encourage more people tout of the Civic Center that are not calla Some things are coming into or going o being handled in a timely matter. We are going to develop a request system so The that requests will be monitored and checked. 'switchboard will have to :be given ;= J -- HAYEK. HAYEK &.. HAYEK AREA CODE 319 --- - _ - - - WILL W.HAYEK ATTORNEYS AT LAW- - --- -- -- 337-9606 -- - - JOHN W HAYEK -:. - 110 EAST WASHINGTON STREET ., C. PETER HAYEK IOWA CITY. IOWA 52240 October 22, 1975 The Honorable Mayor and City Council of Iowa City Civic Center - Iowa City. Iowa 52240 - Re: Sale of Airport Property -by the Iowa City Airport, Commission Mayor and Council Members: - - Sometime ago an opinion was requested from the Legal Department concerning the disposition of funds generated by the sale of airport property by the Iowa City Airport Commission. As I under- - d been made a few years ago and the funds stand it a sale of property ha from that sale were thereafter deposited in the general fund of the City for the account of, the airport Commission. and were not held specifically Mr. Kushnir has prepared a memorandum for me on this subject and I am attaching a copy of that memorandum to this letter for your reference. Mr. Kushnir and I both' conclude that funds derived from the - sale of airport property are under the control and supervision of the Airport Commission. Section 330. 21 of the 1975 Code of Iowa provides in pertinent part as follows: - - All funds derived from taxation or otherwise for airport purposes shall be under he full and absolute control of the commission for the pur- -poses prescribed by law, and shall be deposited with the treasurer or city clerk to the credit of the airport commission„ and shall be disbursed only on the written warrants or orders of the airport commission, including the payment of alLindebtedness arising from the acquisition and construction of airports and the maintenance, operation, and extension thereof. section in my opinion vests control over the disposition of airport This s funds a the Commission including funds from the sale of airport property. City of Iowa Cy MEMORANDUM DATE: January23, 1975 TO: John Hayek, City Attorney FROM: Tony Kushnir,.Asst. -City : Attorney-. -- - -- RE: Airport Commission Powers This is written in response to,a request for an opinion concerning the powers of the Airport Commission. Specifically I was asked to examine the following: L a. - What powers does the Commission havewithrespect to funds generatedfrom taxation? b. How does Home Rule affect these powers? _2. a. What powers does the Airport Commission have in regard to funds generated from the sale of airport property? b. _ How, does Home Rule affect these powers? Law Discussed: Chapter 330, Code of Iowa, 1973 as amended by 64th .General Assembly and the Home Rule Act: - - 1. ;. a. Under Chapter 330 of the Code of Iowa, 1973, ,cities are empowered to establish, improve and maintain airports. The Code, however, provides that a city could transfer these powers to an Airport Commission. The Commission would be granted all the powers given to the City Council except the - rather extreme one of the authority to -sell the Airport. - -- Otherwise, the_Commission has full power tooperate, -_;improve. and maintain the airport including the power to acquire, lease or sell any portion' of real estate or equipment. To provide, funds for the establishing and improving a munici- pally owned airport, the Court authorizes cities or commissions to contract indebtedness' and issue general obligation bonds. Taxes for the _: pavement of said-bondsare --provided for in the Code _._-If the -City decides to -operate :and maintain the Airport insteadof delegating ,the 'power to an 'Airport Commission, the City Council as with other city functions, would: determine and allocate the fundsnecessary for ;its operation. If, -however, :.. the management and control; of: the Airport is delegated to the Airport Commission, it would be the Commission which would make the determination as to the amount of tax to be levied for airport purposes which the City Council shall include in its 7 budget. In other words, the Airport Commission.is given final authority for determining the funds needed to operate and rain- tain the airport. b. The 1972 City Code _of -Iowa enacted; by Acts 1972 (64 G.A.) known as the Home Rule Act, -becomes effective on July 1, 1975. The John Hayek -2- • January; 23, 1975 general intent.of this act is to vest within cities all powers necessary to protect and preserve the rights privileges, and property of the city or its residents. 'A city may exercise any power it.deems necessary to perform any function its deems appropriate except those expressly limited by the Constitution or State laws. - Following in this vein, the new legislation concerning airports speaks mainly, in terms of counties, and townships rather than cities and towns as in -the present -code. Since under Rome Rule cities are deemed to -have the inherent power to establish,; operate and maintain an airport, the new Chapter 330 does not address -itself to such powers. The>new Chapter -330 -does -provide for an Airport Commission which is specifically applicable to cities. The new Chapter 330 outlines the procedures for establishing or ending the management and control of an airport; by an Airport Commission along with the general powers of said Commission.The intent here - __on the 'part 'of the General Assembly, -in' my view, is to have a uniformed set of guidelines and procedures_.upon which airport commissions throughout the State can operate. _Because the rela- tive importance of airports and their impact can be viewed as a matter of State concern the procedure for establishing airport commissions be counties and cities is a legitimate area for State involvement. The powers and duties of the Airport, Commission under Home Rule are the same as under' the present statute but for one important exception. Astofunds allocated to, the commission's use from taxation, the City Council may now include in its budget all or part of the amount certified by the commission. The City Council under Home Rule is a'final authority as to the amount of funds derived from taxation that will be included in its budget. Thusthedelegation of management/and control of the airport to the Airport Commission by'the City Council is not as complete or final in Home Rule as under the present statute. This well coincides with the purpose and intent of Home Rule. 2. a. The Airport Commission under the present Code -of Iowa, as dis- cussed above, holds an autonomous position with regard to operat- ing an airport. it does not depend upon the City Council -in the operation and management and _even the funding of the airport. - In the powers of the. Airport Commission. concerning funds, .;the Commission is the body which determines its own budget. It is also -myfeeling "that -the Commission also maintainsfinalauthority --_ over the disbursement of monies -besides those derived from taxation. Section 330.21 of the present Code stated that "all funds derived from taxation or otherwise for airport purposes shall be -under the full and absolute control ofthe commission"—This ' section relates back not only to funds derived from taxation but also to section 330.12 where the commission is empowered to lease and - City of . Iowa y r� MEA/ -SAN VM DATE: October - . 1975 / TO: Neal Berlin, City Manager/J€i%� ,! V FROM: Bob Bowlin, asst. City attorney r �/ �J6 5 RE: Waiver of Taxes with Lien Provision and Elderly and Disabled Proper Tax -Reimbursement- .: L Waiver of taxes with lien provision: The applicable law here is sections 427.8 through 427.12, 1975 Code of Iowa. Whenever a person, by_reason.of age or infirmity, is unable to contribute to the public revenue, such person may file a petition, duly sworn to, with the Board of Supervisors, stating such fact and; giving a statement of Property, -real -and Personal, owned or possessed by the applicant.... The Board of Supervisors may thereupon order the County Treasurer to suspend the collection of the taxes assessed against the petitioner for the current year, or such ,Board may cancel and remit such taxes, provided, however, that such petition shall first have been approved by the Council of the city in which the property of the peti- tioner is located....- -- - - - Section 427.9 provides that when a person is a recipient of federal supplementary security income or state supplementary assistance or is a resident of a health care facility which is receiving payment from the Department.of Social Services for his care, such -a person shall be deemed to be unable to: contribute -to the -pub lic revenue.' 427.10._ The Board of Supervisors does have the option to cancel and remit the taxes assessed rather than merely suspending the taxes.' 427.11. If ther petitioner sells the real estate upon which the taxes have been suspended, or if the property shall pass by devise, bequest, or inheritance to any person other'than the surviving spouse or minor child of such infirmed person, the taxes, without any accrued :penalty, that -_have been thus suspended shallall- become due and payable,, with 68 interest per annum from the date of.°such suspension, except -that: - no -interest on taxes shall be charged against the. property or -estate -of a person receiving or having received monthly or quarterly payments of old age assistance. s 427.12 requires that the County, Treasurer keep, and maintain a book which shall be known as the "suspended tax list", 2. Reimbursement for elderly and disabled property taxes. The appli- cable law is sections 425.16 through 425.39, 1975 Code, of Iowa, as amended. See the Iowa Legislative Service -for amendments to Chapter - 425. -Basically, these sections constitute an extraordinary property tax reimbursement. They are in the form of a rebate of tax. -The rebate is payable in September of any year. 425.17 is the section which gives definitions of the various terms used in the statute. �j4 vial eddle5. `peOp�es;Bicenten p,. radic alisr..---,- heavy disgu� se - -��i . - - - _ x;:.va ,•.z.urts:o`-•G`••�`^`•x + Traditional Patriotic celebrations are -' ,,..• «guycantennial" or By Jenkin Lloyd Jones denounced as the are to be spoiled, i[ e in, Q p I n I O Il Pay-triotism." That ----About-18 months ago I became _ -, possible,:;by confrontations in the hope ttigued with publications of an that Ty cameras Willi swing toward the called: the people's Bicentennial .Com• - excitement On April 19 when the Pcesi• mission In those 'days _the PBC was Page.ft,!r dent went -UP to Concord to mark the trying to rally the scattered New entre i s200th:anniversary of the bridge fight, a and itssales-._pitch had a frank ; , .�,�. ' I of PBCers, waving Placards n.us qualify, What was wanted was rev. . r • Y s .,vis < large peace . _:- a s`�``r" rc., "t •.and ahoutin6 obscenities tried to break olution by new means. Ides Insists ' = irup y So the idea was to junk the Viet Cong :-. - re eared. There is flags to seize upon Judgrttent3 Cdtntt�its This may not be P and Red Chinese B - reason to:belfeve tbat_In recent months - the upcomtn6 American Bicentennial as . `� '� <� the PBC has had such success in unload- ormerin8 the socialist rev-: ..`r �^ ^•{••`'''""h' v .h B ro - liibie media a device toi P -(3yfi in Its P pa8anda on, gu movement as a logical eaten- " ..}.- ,. olutionary - - o Jeger- years he and that make no effort to Identity the Sion of the work of Washington, ing radicalism." y - How to•, _PBC'a _origins that crude brawling may son, Franklin and Co .. - Rifkin. _co-authored a book, _ le ` be considered both risky and-unnerxis �s�ry_After;ail, why invite; brickbat+ As one PBC writer put it., -We need a Commit Revolution American Sry when reporters and i tf newsmen are plan`of- attack ' -a prograizi jor_'taking So the Peoples Bicentennial got un• _. - you og as just. another Hower• : It has to come,out of our own • `der way, headquartered in Washington. - willing to. Pa`s y -A modest federal grant was received.: patriotic organization like the American (See article below) from an .agency that later: admitted:. it Legion or the DAR? _. T - hadn•[ Lead Its.stuff. Attractive liters- , _ PBC's greatest_ coup oc•- •life experiences,' and not of the ex lure leaning. heavSly ori -18th -Century - Probablyt -I .when the Associated periences of Russia, -China or Cuba woodcuts and quoting American revolu• carred' Sep reported. that Old theories :become irrelevant, pew ` tionary leaders copiouslyaed gentry into - Press' out of Washington -= `the revolution is only In a poll. ordered by the PBC "two out of .;methods necessary. ..f r, "the whammy— ,.,.. IS.,y° three. Americans- favor -drastic changes _ ;The PBC- grew out -.0 'something half done. in the country's economic system `called the` New American *. Movement Techniques were outlined for radical• ed its protests which ,was started, according W Ac, _ izing _ schools and defying the faculties .. -The_, ties teknlown t fo PBC only as "a cy-'.in btedia; by -a group of pro -Vie t "If any problems come up remind them group _. ! Co in Nl die, activist l- including, one _that King ,George didn't likewhatTom against the --official Bicentenmat Pian' member" oC. the -terrorist _Weatherman Jefferson, Ben Franklin and Sam Adams _ ning.and what h claims-ti6n's 200th ictal '•° wfferso mg in their day -either, but.i[ exploitation of the nauons_200th butt'' outfit ,. -`.'day.- Its daY The November, 1971, issue of its.un 'never stopped.lheml - i< . t y,, + e7. said that a field rt aL d The story. quoted Rifkin as being dergroiind newspap i JeremY`Itn•-_who is _.i amaze who at the rest[veness of , iepreseniative, la's Bicentennial. -.w -as • - and'stated that-'66opercent rot those S .now head of-.Peop _.._.. - ' ' sled. thought emPi 5'esshouldowa a -,Polled s stock- f .assigned to a small committee. to [one nsights - majority of a compatty' - `down.the-aocialistrhetoric. so. that it 1 D ` coincidence.A couple of,- would fr would not drive away the average till- -Funny - - - �— months agol wrote RlfkirrasWng,how zen. - _ _ ��. - - Wrot- Rtfkiq: "'the New Left must be C _ PBC's aims differed courteous Cron -old -rah io n .:willing to Meerewhere. they. are, - pr -i -Marxism. In his courteous r Marxists or would like them-. - l y_"Weare neither sociali. mem of. Belt- - ca[her.thanwherethey - —^..y _ cap' favor -a rate with- to. be professing to see more fertile . t - uses that_ope upheaval, he he added: . "managed enterprises economy This 'ground for socialist PP.. to—engage this �inr.a�free cornea _if the. New -Left hopes- :, f means employes (not outside investors) _it new consciousness it must :.. build on 0 , \ J '; sharing the income of the firm on Cha l fi&. base erected in the revolution of _-__ _ � ,!` termining.broad wmPanY policy _1716." Thus, he wrote, would people be ! `� - i person one voce O , principle of one pe ,moved to accept the doctrines of "Len- - r -- - -the Associated Press going y - - n Is in, Mao and Che Guevara ' . ;; r • N 1 !n`esufficfentihist 1. i listed to reo- The idea of using the Bicentennial for _. ' ` u mud ; . e a Trojan horse? -_ -:'I,- et _the New Let -Purposes did not' fo reform •a man .Yn i i ognlr, -- an old- begin. with hh grondmolhor.lrna cal. --i I -:nate with Rifkin. John with the scheme for - Ycfor HuQ� line leftist. came up ,,`+ : i '�A;�;y-aj z 7 - -radicalizing Americans Americans by Americaniz- + • _.:_ , i _.i i s _ ORDINANCE NO.: -` AN ORDINANCE TO PROVIDE FOR. THE ADMINISTRATIVE ENFORCEMENT OF THE-PROVI SIONS.OF THE HOUSING CODE, -FOR THE GIVING :.OF NOTICE,._ FOR. SERVICE_ OF _._VIOLATION NOTICES AND ORDERS FOR CORRECTION..OF�VIOLATIONS AND THE -� . -MAKING OF NECESSARY REPAIRS, TO PROVIDE FOR THEINITIATIONOF.RENT:ESCROW PROCEEDINGS BY THE -,CITY OF IOWA CITY, IOWA, FOR THE ADMINISTRATIVE REVIEW OF NOTICES.: AND ORDERS, FOR THE ADMINISTRATION OF SAID RENT ABATEMENT AND WITHHOLDING PROGRAM,.: AND FOR THE PROTECTI.ON OF TENANTS UTILIZING SAID - ORDINANCE. SECTION I. PURPOSE. The purpose of said ordinance is to provide for the health,, safety and general welfare of the residents of the City of Iowa City-by,-establishing administrative procedures and remedies in the enforcement of the Housing Code. SECTION II-.RENT SUSPENSION AND ESCROW PROCEEDINGS. - Notwithstanding any other provision of law, or of any agreement, whether oral or in writing,' whenever the Housing Inspectorof the City of Iowa City certifies a dwelling or dwelling unit as_unfit -for human habitation, the duty of any tenant of such dwelling or dwelling unit to pay, and the right of the landlord to collect - rent shall be suspended without affecting any other terms and conditions of the it is certified I as landlord-tenant relationship until the dwelling or dwelling unther fit ,for human habitation or until the tenancy is terminated for any reason other than the non-payment of rent. riod when the duty to pay rent is suspended, and the tenant continues During any pe to occupy the 'dwelling or dwelling unit, the -rent withheld shall be_deposited'by the _tenant in an as account and in a bank or trust company approved by the City of Iowa City. Said rent shall be paid to the landlord when the dwelling or dwelling unit is certifiedas fit for human habitation at anytime within six months from the teon-whichthedwelling ordwellingunit-wascertified unfit for human habitation: date the end he ix months after the certification-of-the dwelling or dwelling If, at atss unfit for human habitation, such dwelling or dwelling unit has not been unicertified for human habitation, any monies deposited in escrow on account of continued depositor, except that any_fu occupancy shall be payable to the nds deposited in escrow may be used for the purpose to _making such dwelling or dwelling unit fit for human habitation and for the payment of utility services for which the landlord - n but which he/she refuses or is unable to,pay. - No tenant shall`_be evicted nonpayment of rent while the rent for any reason relating to the is deposited in escrow However,'a tenant may be evicted for holding over after; the end of the lease term However, written ten tenant mayse. At the end of the first:_6 months after_: certification of non in anyhabitability if_the landlord deems to be economically unfeasible it; to repair or renovate the premises the landlord may evict the tenant for purposes of vacating or., that event, no_.certificate of occupancy shall be demolition of said premises. In said premises for a period of one year following issued and no person shall Occupy the ,tenant's eviction. SECTION III.- ADMINISTRATION. The City Manager nhal.l develop and establish written policies,_ procedures, criteria, and;regulationu_concerning the inspection, determinatl.on and certification of dwall,ingA or :dwelling units and shall develop and establish written procedures for the disburse = f the tentwithholding program. ment of any and all monies derived as a result o' Ordinance No. • page 2 ` Such rules and regulations shall be adopted by resoluti on -by 'the City: Council. - SECTION IV. NOTICE AND :SERVICE --REQUIREMENTS. - When a Housing Inspector upon inspection finds that a certain dwelling or dwell- ing unit qualifies for the rent withholding program, the Housing Inspector )shall -give notice to owner or the person or agent` responsible for the management of said dwelling" or dwelling unit of the alleged violations, end that said dwelling or dwelling unit qualifies for the rent withholding program. ,The notice shall, (1) be in_writing, (2) describe the -violations in reference to the applicable provision of.the Code, (3) state that the tenant qualifies for the rent withholding program, and (4) 7-1 advise that said -owner or agent may secure an administrative review of said ,determin- ation upon filing a petition in writing within seven (7) days afterserviceof said< notice._ The notice shall be deemed to be properly served if it is personally, or if a copy thereof is delivered to the person'served pes regular business servedoffice pe or if,a copy is mailed to him/her 'by certified mail, return receipt requested, at his/her last known address. In the event that service cannot be obtained in person or by mail, then such notice shall be conspicuously posted by; the housing inspector upon the premises to which the notice relates so that it shall be visible to the 'general public and such posting shall be deemed to be sufficient notice hereunder. `,Notice to any person under the provisions of this -section who meet the definition of owner under the Housing Code shall be deemed official notice as if notice were given to the actual owner. SECTION V. ADMINISTRATIVE HEARING AND REVIEW. Any person who shall be served a notice in connection with the enforcement of any provision of this ordinance or any rule or regulation adopted thereof, may 'request a review thereof by -the -City Manager or his/herdesignate, within ten (10) daysafter service of the notice and order. Such review and hearing shall be held within a reason- able time thereafter. All. parties concerned shall be .notified in the manner -described in this ordinance of the time and place of the hearing sothatall parties have an opportunity at said hearing to, respond and present evidence and arguments on the issues involved. The landlord may assert and present evidence as to why a particular tenant does' not qualify for the rent escrow program. Among the matters may assert and show, but is not limited to, the following; presented, the owner a. The deficiencies found by the housing inspector had been directly caused by the tenant or members of the tenant's family beyond ordinary wear and tear. b. The tenant has refused entry to the owner or his/her -agent -to the purpose of correcting such condition or conditions. C. The owner or his/her agent had no knowledge or had no reason to believe that said deficiencies had existed in the dwelling or dwelling unit.- Following nit. Following the presentation and consideration of the evidence and arguments, the City Manager or his/her designate may affirm, modify or reverse Said certification and shall promptly notify all parties of the decision b them oz a copy delivery to Of such decision by personal_ service or by certified mail, return receipt requested. ■ Ordinance No. - • - - - page 3 - - - An appeal pursuant to this section -shall -not stay the effect of the housing inspector's s certification under Sections II and IIIof this Ordinance -unless so ordered by the City Manager. SECTION VI.. EMERGENCY. Notwithstanding the provisions stated in Section IV, whenever, in the judgment of;.the Housing Inspector an emergency exists creating a -dangerous and imminent health and safety hazard to the occupants of the dwelling or dwelling unit or the public which requires immediate action, the Housing Inspector shall order; such action as may -be necessary to meet the emergency. If necessary, to protect the health and'safety -of the occupants or the public, the Housing Inspector may order that the premises be_vacated fortwith..and-that : they -shall -not bereoccupied until the order to make repairs. Any orders issued under this -section, shall be effective immediately or in the time and manner prescribed in the order itself, notwithstanding an other y provision of this ordinance. Li SECTION VII. RETALIATORY EVICTION. 1. Except as provided in this section, a landlord may not retaliate by increasing rent or decreasing services or by bringing or threatening to bring an action for possession after the tenant has complained to a governmental agency charged, with responsibility for enforcement for a building or housing code of a violation applicable to the premises. 2. In any action against the tenant, evidence of -.a complaint within six (6) months before the _action creates_a presumption that the landlord's conduct was in: - retaliation. This presumption does not arise if -.the tenant made saidcomplaint after:- ' notice of a proposed rent increase or diminuation of services. "Presumption'. -means - -- that the trier of fact must find the existence of the fact presumed unless aa-nd until '< evidence is introduced which wouldsupporta.finding of its nonexistence. 3. To overcome said presumption the owner or his/her agent shall assert and establish, but are not limited to, the following:, a. The condition or conditions found in violation of the housing code were directly caused by the tenant or the members of the tenant's family beyond ordinary wear and tear. b. The tenant has refused entry to the owner, or his/her agent to the premises for the purpose of correcting such condition or conditions. C. Compliance with the applicable building or housing code requires alteration, remodeling or demolition which would effectively, deprivethetenant of use of the dwelling unit. d. The tenant is in default in rent; or 'if said tenant is partici- pating in the rent escrow program, that -the tenant is.in arrears in his/ her payments_of-the.amount of rent to the escrow account.' SECTION VIII. REMEDY -NON-EXCLUSIVE. No provision or section ofthisordinance shall in any way limit any other remedies available under the provisions of. the Nou©ing.Codn or tiny othor nppJ.J.cabJn Inw. RULES AND REGULATIONS GOVERNING RENT WITHHOLDING :--General Provisions` - - --- - -- '- The Department for Community Development shall be the -agency designated to administer and enforce compliance in accordance with the Rent Withholding Ordinance. The use or nonuse of the rent withholding program shall in no way limit any other remedies available to the City of Iowa City or the tenant upon discovery of housing; code violations. I. The following penalty point system and criteria shall be the basis wherein structures and dwelling units shall be evaluated and qualified. - Penalty point and violation wording - -' (See appendix A.) A. 1-25 penalty points: The structure or dwelling unit contains housing code violations but does not qualify for rent withholding. B. ` 26 or more penalty points: The structure or dwelling unit contains housing code violations to the extent that the premises are not habitable and as such qualifies for the rent withholding program. C. Emergency: _An imminent health or safety hazard exists and the only feasible solution is vacating said structure or dwelling unit. D. All structures shall be completely inspected and evaluated for rent withholding. E. in the case of multi -family units, qualification of,any part of the structure may not qualify all dwelling units therein. ;Each -- -_---dwelling unit shall be evaluated separately, and that .portion of the exterior score and public areas used by the occupant which affect each unit shall be added to the point score of the dwelling unit. II. Abatement of rent withholdingshall occur: A. When all cited rent withholding violations placing that structure or unit under rent withholding have been corrected; or B. When there is a judicial determination that said property should be razed, escrow funds will be returned tothetenant. A unit can be considered as fit for human habitation and the property removed from rent withholding when all rent withholding violations have been substantially corrected,, no violations of'a major public health or safety significance remain and ,the total score is less than 26 penalty points. III. The certification date shall be the date that notice stating that the structure or dwelling unit qualifiesforthe rent withholding, program is served a - r -2- - • • _ 1 the violations Re-certification have not been qualify the premises for rent abated by the end upon the owner or his/her agent. shall occur when which withholding of the six-month period. IV. The Department of Community Development, Housing Division shall be dwelling The the inspection, notification and re-inspection of structures and dwelling units. " violations The housing inspector shall make a complete inspection not any of the housing code upon the Rent Withholding score sheet. Defects which the tenant is responsible for shall not be included as a portion of the score. tion that and ifica Notice of violfor rent withholding shall be sent t tthe owner wits shall be - ture has qualified t'requested. Notice to the tenant shall be days by certified mail, return receipt sent-for'; any violations discovered for which the tenant is responsible as well as the date for re-inspection for compliance. program, the Housing ing eligibility for the Rent withholding a Inspector shall nortment of Finance. Upondetermintify the tenant and promptly notify the Dep After the six-month period has passed, the housing inspector hall make a in day., If the conditions re-inspection of hethe"ises.inspectiontwillvbetdueethe followingn datesaidlstructure week-end or holiday, inspector shall re-certify - aeon re-inspection warrant, the housing p- the Department of Finance. If tw to the six-month expiration date, the inspector shall or dwelling unit-forrentwithholding and notify the Depart- repairs are completed prior certify the structure or dwelling unit as habitable and shall so notify ment of Finance. Division shall proceed in routine housing code enforcement, irregard provisions. The Housing less of whether the tenant elects to utilize the rent withholding P • Disbursement of Escrow Moniesnit u , The Department of Finance shall serve as the coney isadeposited underethe e City`of -Iowa: City, Iowa, and the bankwherein any,moPo. rent Withholding program. It shall control the disbursement of any monies _ deposited inthe -rent withholding escrow fund. - in furtherance.,of these duties, the Department of Finance shall: ligibility within the. Department. A. Maintain afile of e H: Open an escrow account. The tenant shall present to a person he City Manager the letter designated as the Rent Withholding Clerk by L from the Housing inspector informing the tenant of .eligibility., The signature of the Housing Inspector shall serve as verification of validity -of--the letter and; the notation of the point score total (20+) shall identify eligibility for rent withholding. C. issue Escrow Account Card.- The Rent Withholding Clerk -shall-issue .on how the Rent Withholding Escrow -Card and -inform-theper�hetenant to ingopenin ingng payments. The identification card; is then used by a Rent Withholding Escrow account into which he/she pays his/her rent listed on the reverse side of the card. at one of the bank offices D. provide Necessary Information to Bank. the Rent Withandholding Clerk will complete any necessary information needed by the bank same to said bank, including the name of the property owner and the address of the property. - E. Receive and filefrom thebank a -daily ,transaction journal showing thereon all transactions, the address of the property concerned,. the name of nt collected and amount disbursed. the property owner, the amou F. Maintain --for use by the Department and as publicinformation,: a - complete record of: 1. Individual accounts open; - - 2: Monies paid into individual accounts (last payment and current balance): 3. Disbursements; 4. Total monies held in escrow; G. Distribution of Escrow Funds. Upon receipt of ,necessary information ` ing Division, the Department will prepare and process for any from the Hous of the following: J. -Authorization for payment of utilities when shut-off is imminent. 2. Authorization for payment to the owner when repairs are made within a six-month period. nth escrow_ 3. Authorization for payment to the tenant if thRent �hholding Criteria period`has elapsed and all -violations based upon have not been abated. H. Notification of Re -Certification. The Department will notify the bank of re -certification. Appendix A ` - - _ _PENALTY POINT SCOPE -AND VIOLATION WORDING' ' Mi M E Ord. Ref. 1. Premises 1 2 9.30.B.B Improper grade. Landsca a and/or repave P / p yard to eliminate - stagnant water or flow toward` structure._ 1 2 9.30.6.H Defective -Or -lacking yard drain. Repair, provide, or 1 regrade. 2 1 2 9.30.6.2 9.30.6.j Defective walks or ste �• tri P•, pping hazard. Repair/replace. Defective 1 2 9.30.6.1 fence. ,Repair or remove. Dilapidated outbuilding or garage. Repair or remove. 1 2 9.30.6.H Accumulation Of trash .hi h 9 grass or weeds. Remove and keep in clean and sanitary condition at all times. 2. Garbage and Refuse " 1 5- 9.30.8.0 Accumulation ofarba a or refuse. Remove and k g 9 keep in Proper container at all times until collected: 1 5 9.30.8.0 Garbage or refuse facilities inadequate. Provide additional or suitable -containers. 1 5 9:30.8.0 Improper -storage g practices. Keep stora =_ containers covered. 1 5 9.30.8.0 Provide tight -fitting lids. Maintain in good repair: 9.30.9.R 9..30.8.A Passageways, hallways obstructed. Remove all obstructions and keep clear at all times. - 3. Building , 5- 10 9.30.6.A Defective foundations;.cracked, bowed, holes. -Point up loose joints. _Repair. Replace. 1 5 9.30.6:A Foundation not watertight. Make watertight. 5 10 9.30.6.A Defective wall. Repair, replace. Point up loose joints. 2 5 9.30.7.F.1 Cellar or basement floor damp and uncleanable. Install trete floor. con-;: 1 2 1 2 9C30.6.A 9.30.6.A Defective cornice or parapet. Rapir, replace or remove. Defective porch, sagging,, pulling away, flooring, support or column. Repair or replace. 1 5 9.30.6.A Defective siding or trim. Repair. Replace. 9.30.6.K Missing or utter or downs - - I 4 pout. Repair oz install. 5 10 9.30.6.K Defective roof. Repair. Replace. • - Building (Con't) Mi M E - Ord.- Ref. -.�• - not connected to. Gutters or downspout_— Repair. Replace. 1 2 9.30.6.K Flashing broken or..rusted�— - 2 9.30.6.K Repair. 1 lack adequate pro 9.30.4.Vtections-- Stairways 1 5 install handrail on balusters- 5 ' 9.30.4 •V Replace. Repair. ` Rep lace. 1 Defective fire escape 1 5 9.30.6.A not plumb , loose or missing bricks. Defective chimney; 1 5 9.30.6.A Repair or replace.- unpainted surface, loose or defective paint Remove all defective 5 9.30.6.A - - - Flaking, exterior. ;surface of paint and repaint. 4. Water 9.30.4.E Water supply not safe. Provide. - water pressure 5 10 * adequate. Provide or increase 9.30.4.J water supply not Provide or restore 5 10 Water not supplied to 5 10* 9.30.4.) Service within Install. hot water heating facilities. Lacks adequate 5 10* 9.30.4.L back siphonage condition exists �- Cross -connection or 5 10* 9.30.4.F_ Eliminate. 5, Sewage _., •. Provide or correct. e facility lacking or inadequate. replace or correct sewer 10 9.30.4.A Sewage defective. Repair, facility 5 5 1p 9.30.4.A Sewage - osor rep lace within�� btructed. Repair 9.30.4.H Sewer defective or 5 10 6. O enin s (Doors, Windows) hardward� ?: door frame_% 9.30.6.D Defective door Repair, replace or install. Install weatherstrip or seal - ht. Exterior door not weathertight- -- -- 1 2 9.30.6.A around frame. - Glaze or Glass loose -- lass Broken window g — 1 5 9.30.6.A reset. sills_% Sashes �— ..A 9.306 ive window frames Defectce or install- jr e, P Rpa 1 2 hardward�_ seal around frames, Tighten, 5 9.3o.6.A Windows not weathertight—_indows. or install storm 1 weatherstrip 2_' Mi M "E Ord.Ref. :�. 'openings (Doors Windows) t) 1 5 9.30.6.A Inadequate secondary means of egress floors.. Provide. ` 7. Floors` walls' Ceilings - 1 5• 9.30.6.A _ - Defective flooring . Loose, cracked, holes, worn. Repair or replace. 1 5 9.30.6.A Floor not reasonably impervious to water. Paint - or cover. 1 5 9.30.6.A missing, cracked or loose plaster Repair oY._rep)ace. - - 1 5 9.30.6.A _ scaling paint or loose paper Scrape and remove all paint and loose paper'and.put walls and ceilings in clean and sanitary condition. - B. Heating - - 5 10 9.30.S.F Heating equipment - lacking, inadequate,` illegal, defective.' Provide, repair, replace, install, remove illegal' heating equipment. -_ 5 10 - 9.30.5.H sufficient heat not provided. Provider 5 - 10 - 9.30.5.G improper or lacking chimney connection . Provide. ., Repair. 5 10 9.30.5.G Gas connection not safe Repair or provide. 5 10 9.30.4.L__ Lack adequate hot water, heating facilities Install. 5 10* 9.30.4.L Defective hot water heating facilities Repair or replace.' r 9. Electric 5- 10* - 9.30.5.E " Lacking electric service____ Provide or restore within_—_ 5 10* 9.30.5.E Defective electric wiring ; fixtures switches outlets.- Repair or replace. 1 5 9.30.5.E • Inadequate electrical outlets switches Provider 5 10* 9.30.5.E Illegal or inadequate electric wiring.. Remove, provide:" 5 10* _. 9.30.5.E _. Remove. -Illegal electrical extension cords and outlets 5 10' 9: 30.5.E Excessive fusing of branch lighting circuits _ Cease`. using fuse ri with rating over 1.5 amperes. Tyro -separate outlets in each habitable room." Mi M E Ord. Ref: �. Plumbing • 9.30.4.A Lacks hot and cold running water Provide or restore 5 10 9.30.4.0 Missing toilet ; tub shower ; faucet - trap_1 vent --;-soil pipe Install." 5 10* . 9.30.4.I Defective toilet tub shower lavatory- basin - soil pipe Repair. P & T - valve - and extension: - -- 11. Lighting 5 10* 9.30.5.A Insufficient natural illumination Provide windows (10% floor area), skylight or onto porch (15%). 1 2 9.30.5.D Insufficient lighting for stairways halls ; - _ basement provide. 1 5 - 9.30.5.A Insufficient lighting for habitable -rooms Provide. 12. Ventilation 1 5 _ 9.30.5.A Lacks ventilation : Provide or vacate. 1 -, 5 9.30.5.B Windows not openable Provide or vacate. s' 1 5 9.30.5.B Insufficient -ventilation Provide. 13. Bath L 10* 9.30.5.0 Vent. - 1 10* 9.30.4.A.B.0 Lacks bathroom - Provide -1 10* '- 9.30.4.A.B.0 Insufficient bathrooms Provide or,reduce occupancy.S 1 10* 9.30.4.0 Bathroom lacks privacy Provide. - 14. Kitchen 5 10 9.30.4.A - Dwelling unit -lacks kitchen sink' Provide. 5 10 9.30.4.1 Rotted wooden trim or drain board Replace. ' 15. overcrowding - 5 10* 9.30.7.A.B overcrowding Eliminate and advise tenant in writing of maximum allowable number of -occupants. : 16. Floor Area 5 10 9.30.7.B Apartment less than 250 aq. ft. Two person rooming unit less than 150 sq. ft. "Sleeping area less than 80 sq. ft. Vacate. 4 =. Mi M E Ord. Ref. •7. Ceiling Height • 5 10 9.30.7.D Inadequate ceiling height of 7Provide or vacate. 18. Use s Occupancy 5 '`' 10 - 9.30.9.A -- Operating rooming house without proper permit__ Secure. r 5 10 9.30.7.E Cellar occupancy` - Vacate. 5 10 9.30.7.F Basement occupa ncy . Obt_a_in_ permit. -- 5 10 9.30.7.0 Improper access to sleeping area—.--. Discontinue. - - 19. Unsanitary Condition - - 5 10 9.30.8.F Fixtures or other facilities not clean Proper control not exercised occupant responsibility. 5 10 9.30.8.F Dwelling unit not clean or premise not clean Occupant responsibility- 5 10 9.30.8.A - Rooming unit or shared public areas not clean Operator or owner responsibility. 20. Insect 5 10* 9.30.8.E Roach and vermin infestation Eliminate. 5' 10* 9.30.8.E Mosquito or flies prevalent Screen windows. 'Provide self-closing screen doors. 5 10* 9.30.8.E Insect_ breeding . Eliminate. 5 10* 9.30.8.E Insect infestation in occupants unit.. Eliminate- 21.- Rodent 5 10* 9.30.8.E Rodent infestation Eliminate by poisoning or trapping. 5 10* 9.30.8.E Rat infestation Ratproof. 5 10* 930.8.E Basement, cellar windows or ventilation device permits rodent` entry -: Provide snug fitting 1/4" mesh screen. 5 : 10* 9.30.8.E Rat entry through` foundation walls - , pipe openings Close all rat entries with concrete, brick or other rat impervious material. 22. Other - 5 10 9.30.9.G Bed linen and towels Operator shall` change' at least once per week and prior to letting of any room to any occupant. 5 Mi M E Ord. Ref. 62. Other (Con't) • 5 10 9.30.2 Occupant shall permit entry for inspection and repairs at all reasonable times. `. 1 5 9.30.9.) Class A fire extinguisher 2 10 9.30.9.L Furnace'isolation STREET LIGHTING -` I., Average Horizontal Footcandles A. The following values of street lighting intensity are design objectives which should be met: Average Horizontal Footcandles - Roadway Classification Area Classification Downtown Intermediate 'Outlying Arterial 2.0 1.2 0.9 Collector 1.2 0.9- - 0.6 Local _ 0.9 0.6 0.2 B. The -area. classifications are definedas follows: 1. Downtown That portion of a municipality in a business develop- ment where ordinarily there are largenumbers of pedes- edes- ,. trians_and_a-_heavy_.-demand for parking; space during,-peri- trians ods or peak traffic or a sustained high pedestrian volume and a continuously heavy demand for off-street parking space during business and industrial employment. hours. This definition applies to`densely developed industrial and business areas outside of, as well as those that are within, the central part of the municipality. 2. Intermediate That portion of-a municipality which isoutsideof -a downtown area, but generally within the zone of influ- ence of a business of industrial development, character- ized often by-a moderately, heavy nighttime pedestrian traffic and a-somewhat lower parking turnover than is found in a downtown area. - 3. Outlying and Rural A residential development, or a-mixture of 'residential and commercial establishments, characterized by few pedestrians and a low; parking, demand or turnover. C. All street lighting systems suffer loss of light output_ due to the natural aging of the light source itself, and are all subject_to.further loss due to the accumulation of dust and dirt on the luminaire. The design shouldallow for a normal maintenance factor in the sizing of the street lighting system. C. (cont'd) _.. The horizontal footcandles can be calculated, by .the equation: Lamp Lumens (initial) X. Avg. Horizontal Footcandle =Coefficient of utilization X Maintenance factor Luminairespacing X Roa Width The coefficient of utilization can be determined from the following graph .60 TFHT= a c, rG _. wo 5 _ C '20M ' O 1 - --- -- RATIO - MOUNTING fRIGNT3 TRANSVERSE DISTANCE- MOUNTING HEIONT II. Current Installation Practice A. The required lumen output and mounting height is as follows: - -Luminaire' Roadway Classification Mounting Ht. Local 7,000 lumen ASA, Type III 26 ft. 10,000 lumen ASA Type `III 28 ft. Collector Arterial 20,000 lumen ASA Type-ZSI 30 ft. B. The general criteria for the location of street lights are as follows: 1. A street light at all intersections 2. Street lights at mid -block locations if the blocks are more than 600 feet in length B. (cont rd)-- 3. Closer spacing of street'lights'in problem areas = such as major arterials or high pedestrianareas, as determined by an engineering study C. Standard lights - wooden pole 1. The City pays a flat energy fee per light per year. 2. :Iowa -Illinois Gas and Electric Company installs and maintains. D. Decorative lights - metallic pole 1. The City pays a flat energy fee per light per year. 2. The City installs and maintains. E. Parking lot lights - i.e., Chauncey Swan Plaza 1. The City pays a regular_ kilowatt energy rate for these lights. 2. The City, installs and maintains. Page Council Discussion r•` _ October 23,---197S Morgan informed Council she'has been contacted by,_several people that handle hiring the handicapped and disabled asking-that 'the City concentrate on employment of some of these people. `=Some of the advantages and disadvantages were discussed, with<one disadvantage being-inaccessibility.withinithe Civic.Cent__ for;: •— most handicapped. ;Morgan advised that she-would comeback with `a plan and would include revision of the personnel policy to modify the requirement,."best"•qualified. _There were no:Coun--` cil objections. Mr=. Czarnecki commented the City-;would have to make adjustments' for the handicapped. Dick Plastino,.Director of Public Works, was present not- ing the twoitems for discussion are '(1) FAUS (Federal Aid.to Urban Systems) and (2) Muscatine Avenue, a specific part =of TAUS program. fie commented on a letter from the `Iowa Department of Transportation advisi.ng`if our: plans and specifications =for pro' jects: aren't "in by January 1, 1976,-the City will lose-$234,123. Our 3-year amount,.$800,000, is`:divided between=the Muscatine-­ uscatine =Avenue Avenueproject, the_Park Road'Bridge -traffic signals oil the Jefferson/Market couplet,-,and bike trail on Rocky-Shore.- He - wanted direction as.to which programs:-to proceed on at this time. - Council discussed the memo presented_by Plastino'.regarding.the. :. four choices of configuration for Muscatine:Avenue: (1);Five- lanes from lst Avenue-to Wade; three lanes from Wade to Scott Blvd. Plastino_explained that.Dover;(as, previously discussed) was not the most logical division =' g� point, and they :.recommended Wade, also configuration #1.For the future, he added,-there _ was no way he could recommend going with a`;.narrower intersection. -(2)-Five lanes from`First Avenue to Wade; three rlanes 'without`= median from-Wade-to Arthur; three lanes'with median and cut-outs - --for left turns from Arthur to Scott.(3)`Five lanes from -First to Wade; four.lanes with median from Arthur to Scott. _(4) Three lane section from lst Avenue to'ScottBlvd. Plastino stated that a.three lane intersection was barely adequatefor_today's traffic, signalized. There is the possibility that the Highway- -' Department might not fund this. For 'four lanes,.the=traffic volumes are similar to Kirkwood/Gilbert and, ;without a left- turning lane,,; would be accident -prone, 'and he.would not recom- mend it. Council discussed traffic pushing=into 'the `residen- esiden- tial-areas. Berlin tial_areas.Berlin noted that from the Transportation Study Scott .Blvd. is not in demand.- First Avenue.-is,-because it will; take traffic where it wants to go. Councilwoman deProsse'`ex- pressed concern-on widening-to five.lanes,.noting in the long run it would put `emphasis 'on the widening of Muscatine Avenue from Burlington down. The.City'Manager disagreed, suggesting' other policy directions do;this,;such'as providing °a median. After further discussion,'it was'-decided to have three lanes at the intersections of- First Avenue '(north 'and south) and City- M1 ity M IVIO DATE: October 22, 1975 TO:- City Council FROM: City Manager RE: Informal Session Agendas (ThursdayL October 23 1975 Discussion of Human Relations 1:00 Candy Morgan Discussion of Muscatine Avenue 2:00 Dick Plastino Discussion of Rent Control- 2:45 _Steve Brandenburg Executive Session Westinghouse Litagations 3:15 Executive Session ,Old Capitol 3:30 Executive Session Fill vacancy on Electrical Board 4:00 Excluding library employees, there; are 357 full and part-time - people employed_by. .the`City Our overall percentage of women currently, is 25.8%. This represents about a 2% increase over the 2nd Quarter Report. We went from a total minority work force of 14 people as of July 1st to 12 people as of October _1st for a drop from 3.9% to 3.4% of the, total number of persons employed by the City. 1975 L-L:Quarte QUARTERLY PLACEMENTSUMMARYPer- son -6 elq.-O MALES FEMALES MINORITIES TOTAL= REMARKS ADMINISTRATIVE 3 --- 4 PROFESSIONAL 25.0% 75.0% 12.5% OCHNICIANS 2 6 --- 8 25.0% 75.0% 25 PUBLIC SAFETY .3 4 - - - 7 42.9"a 57.1% 21.9% OFFICE 0 7 7 CLERICAL 100% 14.3% 21.4% • LABOR 3 3 - - - 6 TRADES 50.0% 50.0% 18.4% SUMMARY 9 23 32 29.0% 71.0% 3. 1% ti y 3 Quarter.. QUARTERLY PLACEMENT SUMMARY TO DATE Personnel Offices' MALES FEMALES.-- MINORITIES TOTALmak` REMARKS ADMINISTRATIVE b 3 69 --- 'y PROFESSIONAL — 33.3% 66.7% 10.7% u •CHNICIANS 5 10 ---15 33.3% 66.7% 17.9% PUBLICSAFETY- 8 1 15 46.7% 53.3% 6.7% 17.9% -' OFFICE - Z 0 16 1 16 ` CLERICAL - 100% 6.3% 19.0% •' LABOR 21 8 4 29 72.4% 27.6% 13.8%; 34.5%' TRADES s` .SUMMARY 3648 6 42.9 57.1% 7.1% 84 -.: 1975 3 Quartq QUARTERLY APPLICANT SUMMARY Per ion neII MALES FEMALES-. MINORITIES TOTAL REMARKS ADMINISTRATIVE b 4 11 1 15 PROFESSIONAL 26.7% - 73.3% 6.7%- 1.4% OCHNICIANS 157 43 7 200 78.5% 21.5% 3.5%- 18.8% PUBLIC - SAFETY 401 153 20 -- 554 72.4% 27.6%; 3.6%_'_ 51.9% OFFICE 4 274 8 278 s 1.4% - 98.6%; _-2.9% _. 26.1% CLERICAL -CLERICAL- - LABOR LABOR 15 4 0 19 E TRADES 78.9% 21.1% 1 1.8% _- SUMMARY 581 485 36 1066, 54.5% 45.5% 3.4% - 19753 Quarter APPLICANT SUMMARY TO Personnel OffI DATE MALES FEMALES MINORITIES TOTAL REMARKS ADMINISTRATIVE 183 s 139 44 14 PROFESSIONAL 76.0% 24.0% 7.7% 8.2% CHNICIANS e 255 109 18 364 70.1% 29.9% 4.9% 16.3% PUBLIC SAFETY 616 , 230 35 846 72.8% 27.2% 4.1% OFFICE_ 427 14 476 49 s --CLERICAL 10.3% 89.7% 2.9% 21.3% • LABOR 33 19 370 337 s 91.1% 8.9% ` 5.1% 16.5% TRADES SUMMARY 1396 843 100 2239 62.3% 37.7% 4.5% 1975 . 3 Quarter. -. Personnel Off 1, QUARTERLY STATISTICAL SUMMARY _ REMARKS FEMALES MINORITIES TOTAL -- MALES ADMINISTRATIVE -1 23 _17 6 4.3% 6.4% PROFESSIONAL 73.9% 26.1% 2 46 eCHNIC_IAHS 31 15 4.3% 12.9% 67.4% 32.6% _- _1 109 PUBLIC SAFETY 100 9 1.0% 30.5% 91.7 % 8.3% 2 49 OFFICE 0 49 _4.2% 13.7% 100% CLERICAL' • LABOR 13 6 636.5% 130 ; C 117 90.0% 10.0% ` - TRADES - - 12 357 SUMMARY 265 92 3.4% 74.2% 25.8% _. = 3rd Quarti Iowa city Public Library -C QUARTERLY APPlicant SUMMARY Personnel MALES FEMALES MINORITIES. TOTAL REMARKS.. .ADMINISTRATIVE PROFESSIONAL CHNICIANS PUBLIC SAFETY 13 37 3 50 OFFICE 268 748 63 100% CLERICAL • LABOR TRADES 13 37 3 50 SUMMARY 268 748 68 Quarter, Anolicant Summa�Y To Dar= Personnel O f t 1975 Ivaa city Public Library 3rd air REMARKS MALES FEMALES MINORITIES TOTAL . 55 ADMINISTRATIVE 44 11 b .. 31.1% 80% 20$ PROFESSIONAL 64 3 72 8 •CHNICIANS _ 88.9$ 4.28 40.7$ u.l$ PUBLIC SAFETY 37 3 50 _ OFFICE 13 6$ 28.28 !: 26% 74% CLERICAL • LABOR TRADES 6 177 65 - 112 SUMMARY 36.7$ 63.3$ 3.4$ _ � ON o 1111 HIM 1011111111111111 loll NO 111 0 1 IN 11111 HUMERI HIM 111011111 1 Y NONE 1111101 11r I IN W17 Sag rIrLE ; . — EELyAcE Fell, , n�AcE ' sleet �,BRARy ;. s� 8 z, D LERK TyP1sT saaP A, A,A,A,A rsf/•A, "3 i CI_CI C.0 �i Qy GLOQr 3rcP B i,EP_ - E E - [Yaq[MFNA[UrE R/OFKCQ 2 '. B B 0000a000. ' ; -: R.�ir4 Ei roFYE[�FALT _ C c c.C- E` FF,fF orEQ. C "� _KEj/PLrIXU 4&oaAir el r, -K � DD F DP. MACN. O/ECATOQ - -. r- -, µ`D .SEN/n,2 - cL[4K . 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