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HomeMy WebLinkAbout1995-11-28 AgendaREVISED Subject to change as finalized by the City Clerk. For a final official copy, contact the City Clerk's Office, 356-5040. AGENDA IOWA CITY CITY COUNCIL SPECIAL COUNCIL MEETING - NOVEMBER 28, 1995 6:30 P.M. COUNCIL CHAMBERS ITEM NO. 1 - CALL TO ORDER. ROLL CALL, ITEM NO. 2- CONSIDER AN ORDINANCE AMENDING THE ZONING ORDINANCE BY CONDITIONALLY CHANGING THE USE REGULATIONS OF_..~N APPROXIMATE 2.0 ACRE TRACT OF LAND LOCATED EAST~=~-I~DUBUQUE ROAD AND NORTH OF DODGE STREET FROM_~J~, LOW DENSITY SINGLE-FAMILY RESIDENTIAL, TO OPDH-8, P~ED DEVELOPMENT HOUSING OVERLAY. (REZ95-0010)(Seco~.Cefi~ideration) Comment' A~ November 2 me~ting, b a vy ote of 5-0, the Planning & Zoning Commis~ recommended denial of the original application to rezone 5.7 acres. The,,P-.~nning and Zoning Commission has been invited to meet and consult with ~ Counc'd at the November 27 meeting. Comments were received at the /' November 21 public hear'rag on th's~ item The. oC uncil at the request of the applicant decreased the rezoning application to approximately 2.0 acres. Action: ITEM NO. 3 - CONSIDER A MOTION TO ADJOURN SPECIAL MEETING. ~' ' ~:~,_~ p.m. Su~_e,c_t to change as finalized by the City Clerk. For a final official cop ,~contact the City Cler~, s Office. 356-5040. AGENDA IOWA CITY CITY COUNClL~ SPECIAL COUNCIL MEETING - NOVEMB/ER 28, 1995 6:30 P.M. COUNCIL CHAMB7 ITEM NO, 1 TO ORDER. ROLL ~ aLL. ITEM NO. AN CONDITI( 5.7 NORTH OF ODGE RESIDENTIAL (REZ95-0010 AMENDING THE ZONING ORDINANCE BY USE REGULATIONS OF AN APPROXIIVIATE LOCATED EAST OF OLD DUBUQUE ROAD AND FROM RS-5, LOW DENSITY SINGLE-FAMILY PLANNED DEVELOPMENT HOUSING OVERLAY. Consideration) Comment: At recommenda staff report public hea on this 2 meeting, by a vote of 5-0, the Planning & Zoning denial of the requested rezoning. The Commission :onsistent with staff recommendation contained in the Comments were received at the November 21 Action: ITEM NO. 3 - A MOTION IRN SPECIAL MEETING. #2 page 1 #2. Horow/ Consider an ordinance amending the zoning- wait a minute. Is it feasible to read the exact same language or shall we have staff give a briefing first? Staff, would you care to give us a briefing on this? Other than that I am going to read consider an ordinance amending the Zoning Ordinance and I don't think that is where we are at. Franklin/ That is second consideration of an ordinance that you defeated last night. Horow/ That is right. Franklin/ So there is no reason to read it. Horow/ Thank you. Okay. Nov/ Now, what is going on today? Horow/ Would someone like to guide us through this in terms of the request that has been made? Woito/ I don't know that there is a request been made. Horow/ In that case shall we call public discussion and see whether there is a request being made? Council/ (All talking). Lehman/ I think we should adjourn. Kubby/ No, I think that there is some information that Bob would like to talk to us about. Horow/ All right, Chair would entertain public discussion. Mr. Burns and I have suggested that certainly council is open to whatever you wish to discuss with us. Bob Burns/ I have some new information. First of all we have a signed CZA now. It is a facsimile copy but the originals are being sent UPS from Hitchcocks from Wisconsin. It is signed by the Hitchcocks and by the Limited Partnership. Do you have copies of that? Horow/ And our Legal Department has seen this? This represents only a reasonably accurete transcription of the Iowa City council meeting of November 28, 1995. F112895 #2 page 2 Woito/ No. I have heard about it. Thank you. Burns/ It just arrived this evening and they just signed in this afternoon. So that is point #1. The second issue that we like to discuss is the protest and I would like to put the overhead up if you could get it. Horow/ Okay. Bob Miklo, would you like to get the lights please. Burns/ I didn't-I guess if I need to make an official request that we would like to re-open the issue of voting on this zoning amendment. If I had known this last night I would have brought it to your attention or if I had recognized it last night. I did not but I checked on it early this morning and then brought it to the attention of the staff this morning and discussed it with my attorney. Steve Ballard is here representing them tonight. But this is with respect to the protest and the 20% that triggers a supermajority. We believe an error was made in the calculation of the-based on where the 200 feet began. I think the city staff marked off 200 feet from the centerline of Saratoga Place and we have pointed out to them that the property that is being rezoned is highlighted in green which is the parcel that the Hitchcock family owns and which is the subject of the CZA. That is the legal description that is in the CZA. SO we believe that the 200 feet should begin at the northern boundary of that piece of property. Kubby/ Not at the northern boundary of Saratoga? Burns/ Not at the centerline of Saratoga Place. I believe that the city staff have measured from the centerline of Saratoga Place north 200 feet which brought it into the portion of the Kessler Property and the Gordon property to the north of the RS-5 tract. And we believe that the, according to the State Code and the city zoning regulations that it defines where that 200 feet should begin. It says and I am reading from the Code, Chapter 14-6, u.6.b. Within 200 feet of the exterior boundaries of the property for which the change or repeal is proposed. So we believe that the 200 feet should be within 200 feet of the exterior boundaries which is the boundary of the tract that was described in the CZA. We think that would impact that 20%. We think you would be under 20%. Nov/ Are you saying that the property line begins at the edge of the street? Thtsrepresentsonlyareasonablyaccuratetranscrlptlon ofthelowa Clty councllmeefing of November28,1995. Fl12895 #2 page 3 Burns/ It begins at-The exterior boundary of the property which the change is proposed which is the northern boundary of the Hitchcock property. Horow/ And the project itself then does not include the street? Burns/ Yes, the street doesn't exist now. Horow/ But the street will not then exist? How will you develop that property. Burns/ It is part of the CZA. It will exist as- Horow/ Why wouldn't half the street then be have to be acquired? Burns/ Well, it is all part of the rezoning. Kubby/ It is acquired and doesn't have to be rezoned. Baker/ They are buying the property but only part of it is being rezoned. Burns/ And so- Woito/ But the street is included in the rezoning. Horow/ That is right. Throg/ In the rezoning? It is in the CZA. It is not part of the land being rezoned, I think. Horow/ Okay, well, Mr. Burns, I am sorry to interrupt you. Do you have anything else to present? Burns/ I think that is the essence of our request for you to reconsider based on this new information. Horow/ Thank you. I would like to have staff at least give us their perspective of this. Franklin/ This is the configuration of the zoning that we have been working with since this project came in with the s.f. and the multiple mix. We explained to Bob at the beginning of this that the zoned boundary had to go to the centerline of the street because of a provision in the Zoning Ordinance which requires that the zone boundaries are at the centerline of the street. At the time that we told him that he expressed concern Thlsrepresentsonlyareasonablyaccuratetranscription ofthelowaCitycouncilmeetingofNovember28,1995. Fl12895 #2 page 4 about the extraordinary vote requirement given that it would not be 200 feet then from the Kessler and Gordon property. At that time because the Kessler, Gordon, and Donahue protests were the only ones that were in it would not have triggered the extraordinary majority vote. Since then we have received additional protests from Dyer and Dickens. Dyer to the east and Dickens to the southeast which brought it over the 20%. We stand by and have always dealt with this as the zoned boundary being on the center of that street. There is an error in the CZA. That error was consequence with which we were dealing with this between last Tuesday night when there was a change in this whole project to getting to you on Monday night and trying to get a CZA together by Wednesday to get it to the Hitchcocks in Minneapolis because we had a holiday Thursday and Friday. Kubby/ So does that mean the portion from the southern boundary of the street to the middle of the street is in the Ruppert property? Franklin/ It is in Charles Ruppert's property. That is the way the zone has been constructed since we started this particular project. Kubby/ Why didn't Charlie need to sign the CZA? Franklin/ He probably would. I mean if we had caught that all last Tuesday-Remember we had started this out with both Charles and Marie Ruppert and Mary and Lee Hitchcock having to sign this CZA. Mr. Burns requested at your meeting last Tuesday night to diminish the amount of property that was being rezoned. We were all focusing on that southerly triangle and frankly, missed the r.o.w. That r.o.w. though has always been in our discussions of the property to be rezoned. Kubby/ So even if there wasn't the 20% protest triggering an extraordinary majority, Charlie would still need to sign it and if he keeps his same position the CZA would not be signed. Franklin/ That is correct. Throg/ Was Charlie's opposition to signing the CZA a function of the southern triangle which he-Or was it a function of the northern piece of property? Franklin/ Obviously I can't speak for Charlie but I think it was discomfort with being involved in the whole thing as it Thisrepresentsonlyareasonablyaccurstetrsnscrlption ofthelowa CltycouncilmeetingofNovember28,1995. Fl12895 #2 page 5 progressed. Throg/ You refer to an error in the CZA. Franklin/ In the legal description. Throg/ In the legal description of the property being rezoned. That was what you were referring to? Franklin/ That is right. We did, when this project started out at this configuration, not the original, request that a survey be done by Mr. Burns so that we had a correct legal description. He indicated that he did not want to do that survey until this was finalized unless the city was willing to pay for it. We declined to pay for it with CDBG funds. We don't have survey. Possible that was an error on our part, too. That we should have insisted it at that point. Throg/ Sounds reasonably complicated. When was the first draft of the CZA prepared that delineated the property boundaries that we are currently discussing? Franklin/ The very first one? Because we started out with one with the 41 units. Throg/ I think we have seen about three in our paperwork over the past week or week and a half or thereabouts. I think. Isn't that right? Something like three. Franklin/ In the last couple of weeks it would have been drafted, I don't know (can't hear). Woito/ It would have been at least four different CZAs if I remember correctly. Franklin/ Yes. Miklo/ We had trouble with the legal description all along because we didn't have a survey and as I recall we had several versions that we had to get to Bob with legal descriptions changing, having to piece it together. Franklin/ I think the bottom line is that everyone to date has approached this until the protest that came in last night with that configuration. Horow/ All right. Legal, do you have any comments on this. Ms. Thlsrepresentsonlysreasonablyaccuratetranscription ofthelowa CltycouncllmeetingofNovember28,1995. Fl12895 #2 page 6 Woito- Woito/ As Karin said, in a rush to judgement to try and accommodate the city council's wishes indicated to us last Tuesday and trying to accommodate Mr. Burns very tight schedule, the legal description which the staff had to put together rather than the applicant did not go to the center of the line and that is an error. But I think in terms of our zoning law requirements, traditionally we have always extended the zoning to the middle of the street and that was part of the conditions that P/Z put on this zoning even when it included the lower portion. They have consistently put we had to put Saratoga in place before you develop this OPDH-8. You also have conditioned approval of the OPDH on putting Saratoga in place. And so that street has always been an integral part of your looking at this project and we all made an error in not catching the legal description which included have of it. Throg/ Clearly the road was part of our understanding but surely was not my own personal understanding that we were rezoning part of the road which doesn't mean I know what to do here. But I am just saying what my understanding was. I do have a question though. What I am wondering is some inquisitive person looked through our rezoning actions over the past 5-10 years and would that person even find an instance where we rezoned up to the property line but did not rezone out to the center of the street? Would we be consistent? Would there be exceptions that we would be able to find or an inquisitive person be able to find? Miklo/ Generally they go to the center of the street. There may be exceptions where a legal description didn't go to the center of the street. When the map is drawn, our technician draws it to the center of the street unless it goes over a name of a street. So the Zoning Ordinance itself says where boundaries are zoned are along streets and alleys, they shall be construed to be along the centerline of such streets and alleys. Kubby/ Part of this, I think, has been our language too in that when we are talking about just rezoning the Hitchcock property, we are never talking about Charlie needing to sign even though we usually go to the center of the street. We didn't talk about it in those terms. Even though it may have been drawn in those terms and that is our status quo, the way we were talking about it didn't reflect our status quo. Thlsrepresentsonly 8reasonablyaccuratetranscriptlonofthelowaCIw councilmeettngofNovember28,1995. Fl12895 #2 page 7 Horow/ For me that reflected that we were looking or I was looking at the whole picture and not just taking it apart such as we agreed to do last Tuesday. And that is difficult to really remember all the various sections. But I really was looking at the whole section, the whole parcel. In other words- Kubby/ But we were only rezoning at the end. We were only rezoning one parcel we thought. That is what our language said but in reality, if we followed the status quo, we were rezoning the Hitchcock parcel and a little bit. Nov/ Our language in terms of conversation always said part of the street belongs in the RS-5 zone and part of the street belongs in the OPDH zone° I never looked at the map this way but I remember the conversation going that way. Kubby/ But in terms of rezoning of land, we are always talking in terms of one owner's land even though we- We just weren't connected. Horow/ But is that our fault. In other words, if consistency sake, P/Z Commission and councils prior to this one had gone along with what is in the book in terms of where the zone changes, then that doesn't change. The consistency is there. Kubby/ I am not necessarily suggesting that we should do it differently. I am trying to figure out how we got to this place. Baker/ There is really, to me, only one question. What is the proper legal description of the land to be rezoned? Woito/ We don't have that yet. Baker/ If the proper legal description is this then the extraordinary rule applies. But you are saying nobody knows what the proper legal description is? Nov/ It has not been surveyed. Franklin/ We can describe that. We can describe what is up there. It is the southerly so many feet for so many feet into Ruppert, Charlie Ruppert's property. Whatever that lot number is. That can be described just by looking at it enough to include in the legal description. Baker/ As of now it doesn't exist as a separate tract,legal tract. Thisrepresents only areasonably accuratetranscrlption ofthelowa City council meeting of November28,1995. Fl12895 #2 page 8 Does it? Franklin/ That half of r.o.w, no. Baker/ It is all part of one- Franklin/ The purple? The line in purple? Horow/ The whole thing. Baker/ The whole thing is one tract that they are recommending for rezoning? Franklin/ No, there are three tract. A triangle, two above. Baker/ So there has always been three different legal descriptions? Franklin/ Yes. ' 9 Baker/ All right. And the middle tract is the one in question. Franklin/ Yes. Baker/ So what we have to figure out is what is not just convenient right now. What is description of the middle tract? the proper legal, the proper legal Franklin/ And when we tell you the legal description of that middle tract and when I say middle tract I mean Mary Hitchcock's property plus half of the r.o.w, then what? Baker/ Well, then that clarifies whether or not you need the extraordinary vote. Franklin/ No. Throg/ Let me ask a related question. How many feet, linear feet, is between the center of that street and the edge of the property line of Charlie Rupperts- The northern edge of Charlie Ruppert's property line? / 175 feet from the center of the street to Charlie Ruppert's. It is 200 feet from the northern property line of Mary Hitchcock to Charlie rupperts. The street is 50 feet wide so it is 25 feet (can't hear). Horow/ All right. Council, Mr. Burns, do you wish to rebut here? This represents only a reasonably accurate transcription of the Iowa City council roesting of November 28, 1995. F112895 #2 page 9 Burns/ The legal description for both tracts that I have the purchase agreement are copied directly from the deeds in the Auditor's office and they are the exact same legal description that I submitted with our application for the city. It is the same language. It hasn't changed a bit and I maintain they are accurate because they are- In fact, the way we do it is we xerox them off the deed and cut and paste so we don't have any inaccuracies of the language. So they-And we have them itemized by the parcel number. Horow/ Linda wanted to say something. Woito/ Your contract to purchase with Charlie Ruppert and his wife and Mary Hitchcock and her husband and you or the partnership, in that you spell our very clearly that as part of your purchase agreement you are going to have MMS do a land boundary survey which is a term of art that can only be done by a certified land surveyor. You call that out that you will do that at the consummation of this property acquisition and I presume that that is why that hasn't been done earlier. But what you are referring to are Auditor's plats which have no legal force and effect and the variations from the legal descriptions and the deeds have varied and we were trying to do our best to accommodate all of this and get it rushed through and- Kubb¥/ They had to changed from the Auditor's plats- Pigott/ That is right. You have to include the road and that is what you are saying it doesn't include the road or half of it. Woito/ The auditor's plat is not a legal description under Iowa law. Horow/ Mr. Ballard. Steve Ballard/ Let me explain that the survey was part of the purchase agreement. I acknowledge that. And we asked the city staff if we could go ahead and expend funds for that because it would be a cost that would be occurred prior to the approval of the HOME funds and you are not suppose to do that. So that is why we requested the city the permission to do that. Horow/ Mr. Ballard- Throg/ Bob, do you have any specific response to what Karin said This represents only a reasonably accurate transcription of the Iowa City council meeting of November 28, 1895. F112895 #2 page 10 about the road and about extending-that the rezoning has to extend to the midway line or whatever of that new road? Burns/ Steve does. Ballard/ I am Steve Ballard. I am representing Mr. Burns. I think that it seems to be anyways as I was looking at this this afternoon for the first time. I think there is some equivocation going on. I don't think it is fair to say what is the legal description for a piece of property without asking a further question which is for what purpose. I guess I disagree with respect with the City Attorney to the extent that the language found in the deeds at the Johnson County Recorder's Office do have legal force and effect as they concern the transfer of a certain piece of real property. Now, for other purposes, it may or may not. But I think the point as I understand it here tonight or before the council is what property is being rezoned. I can't give you a legal description of that property as I am standing here but my understanding is that it is what has been called the Hitchcock property and my reading of your Zoning Ordinance specifically that Ms. Franklin or Ms. Woito referred to. That section concerns the interpretation of a zoning map and if it says if you go to the city's zoning map and a zone abuts a street then that zone is construed as, is the language of the statute, is construed to go to the middle of the street. So it doesn't seem to me that you are rezoning to the middle of the street. You are rezoning up to the street and by that rezoning, I mean some further construction might be that a part of the street is included in what you are rezoning. But more to the point, it seems to me, what is the purpose of your super majority requirement and that requirement as it is in the state law permitting people within 200 feet of the property. I think the language is the exterior boundaries of the property for which change is composed. It seems to me that you are trying to protect people's rights who are within an arbitrary, admittedly, arbitrary distance from the property that is going to have a change of character. In other words you are going to change from RS-5 to OPDH-8 or whatever it is. This street is going to be a street no matter what the zoning is on either side of it and it is going to be a street and the character of that property isn't going to change. It is going to be a street whether it is RS-5 or whatever else it is. Once a street is constructed, that is going to be the use of that property. It is going to be dedicated it seems to me, at least I would assume that is part of the application to the city, and it is going to be a street. That property is not going to Thisrepresents only areasonebly accuratetranscrlption ofthelowa Clty councilmoeting of November28,1995. Fl12895 #2 page ll change in character. The property that is going to change in character ends at the northern boundary of what is called the Hitchcock property as I understand. It seems to me that you have the power to interpret your own statutes that you shouldn't be limited to the one statute that talks about interpreting the zoning map when you consider another statute and look at the purpose for the statute given people within a certain number of feet the ability to protest. Horow/ Okay, any questions? I think council, the question could be called. Baker/ I am not going to call the question. I was going to say I will not support a re-opening of this issue. Horow/ All right. Thank you very much. Baker/ There is too much here that cannot be understood or decided in this kind of time frame. Throg/ Even if we wanted to, am I right in thinking that it would take one of the people who voted in favor of denying the application last night, one of them would have to move to reconsider? Woito/ Yes and also what you would be reconsidering- Pigott/ Anyone of us. Woito/ You would be reconsidering an ordinance amending without conditions because at the time when the p.h. was closed, and it is clear by state law, the CZA was not signed. It was only signed by Mary Hitchcock's husband. Pigott/ If we had a CZA, if we had a CZA and we reconsidered this, would we have a time in order to reconsider this in order to meet the deadlines which are Friday? I don't- Woito/ That is why I recomm~ended last night to consider continuing the p.h. but anyway. I mean just to keep your options open. But that's neither here nor there now. Nov/ The signed agreement did to consider rezoning property out to the center of the street and it still not going to do the right thing. I mean it is still not the correct description of the property that we would like to fezone. Thisrepresents only area$onab[y accuratetranscription ofthelowa Citycouncil meeting of Novembe;28,1995. Fl12895 #2 page 12 Woito/ It could be amended on the floor. However if Mr. Burns does not agree with that, then our whole deal falls through. Throg/ And Bob is saying that he has the reasonably proper legal description and there is some other interpretation applying to the street that has nothing to do with the rezoning of the land itself. Woito/ And if it was signed under confusion by all the parties then we dontt have a deal. Lehman/ I agree with you, Larry. Nov/ I can't see a reason to reopen it. If we start re-amending the description and including part of the Ruppert property to the north as the street is then you need another signature on the CZA. Woito/ And we apparently don't have a meeting of the minds which is a whole underlying legal principle of a contract. Kubby/ And if we add the Ruppert property and we have the 21% still and they are not six votes to make it happen. So that is- Horow/ Karen, do you wish to reopen this? Kubby/ I don't know how you would-I guess I want to understand what the process would be. Woito/ Right now there are five people who do not wish to reopen this. Kubby/ Then why are you asking me? Horow/ I am asking your opinion. I just wanted to make sure that you either did or you didn't. Kubby/ I don't know. I guess I want to understand the process before I- Horow/ Lehman, Nov, Horow, Baker, Pigott. I am doing this for purposes of the tape because we fail to get a lot of nods of heads on this tape from time to time and therefore there are five of us who do not wish to reopen this. Kubby/ And I am a person who doesn't know right now. Thlsrepresentsonlyareasonably accuratetranscription ofthelowa Cltycouncllmeetingof November28,1995. Fl12895 #2 page 13 Throg/ I would move to reconsider except for the fact it is very clear there is not a majority in favor of reconsidering. So it would be a futile motion. I don't see any sense in doing that. I guess, I don't know if this is the proper moment but there are potential legal ramifications associated with this. I hear the attorney for the partnership saying they think they did things right and some how we are interpreting the law differently than it should be interpreted and that is what I am hearing. So I just sense that it could well see- Woito/ I am not at all concerned about the legal ramifications of the city being sued for this process. I mean if that is your question. Nov/ As I understand it even the attorney said it is the city's option to interpret their own law. Woito/ Since there is ample precedent over the years that we have interpreted it that way I mean I feel confident of the city's position. I mean I feel bad that it has become so mixed up. Horow/ I think this is a closed situation. Do you wish to comment on this? Thank you very much. Thlsrep~esentsonlyaro~onablyaccuretetranscrtpfionofthelowe CIW council meetlngofNovember28.1995. Fl12895