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HomeMy WebLinkAbout2015-10-01 Info PacketNMI ar- '� CITY COUNCIL INFORMATION PACKET CITY OF IOWA CITY October 1, 2015 www.icgov.org IN Council Tentative Meeting Schedule OCTOBER 6 WORK SESSION IP2 Work Session Agenda I133 Memo from City Attorney: County Minimum Wage: Legality and City Options IN Memo from City Attorney: Johnson County Minimum Wage Ordinance — Exemptions and Special Certificates Email from Ron Schieffer (Executive Director, Reach for Your Potential, Inc.) to City Attorney: Position Statement (Minimum Wage) [Distributed as late handout on 10/6/15] IP5 Memo from City Clerk: Joint Meeting Agenda Items for October 19 I136 Pending Work Session Topics MISCELLANEOUS IP7 Information from Council Member Botchway: Know Your Rights Street Harassment and the Law I138 Memo from Transportation Planner and Special Projects Administrator: Mayflower Pedestrian Crossing on Dubuque Street IP9 Copy of email to City Clerk from Perry Rassmusen: Good news on taxis I1310 Copy of email to City Manager and response to Peter Byler: Riverfront crossings payments - in -lieu I1211 Johnson County Board of Supervisors Executive Assistant Andy Johnson: Local REAP Assembly IP12 Civil Services Entrance Examination — Grant Accountant IP13 Civil Services Entrance Examination — Mass Transit Operator IP 14 Press release - City Council Listening Post Press release — Concept design for City signature art piece unveiled [Distributed as late handout on 10/5/15.] DRAFT MINUTES IP15 Planning and Zoning Commission: September 17 �AMD �IP � �Aq CITY COUNCIL INFORMATION PACKET CITY OF IOWA CITY October 1, 2015 www.icgov.org IN Council Tentative Meeting Schedule OCTOBER 6 WORKS SSION IP2 Work Session Agenda IP3 Memo from City Aft rney: County Minimum Wage: egality and City Options IN Memo from City Attor ey: Johnson County Minim m Wage Ordinance — Exemptions and Special Certificates IP5 Memo from City Clerk: J 'nt Meeting Agenda 1126 Pending Work Session To 'cs ISCEL for October 19 OUS I137 Information from Council Member otchway: Know Your Rights Street Harassment and the Law I138 Memo from Transportation Planner nd Special Projects Administrator: Mayflower Pedestrian Crossing on Dubuque Stree I139 Copy of email to City Clerk from Perry Ra usen: Good news on taxis I1310 Copy of email to City Manager and resp nse toll?eter Byler: Riverfront crossings payments - in -lieu `r IP11 Johnson County Board of Supervis s Executive Assistant Andy Johnson: Local REAP Assembly IP12 Civil Services Entrance Examinat' n —Grant Accountant ,t 4 IP13 Civil Services Entrance Examin tion — Mass Transit Opi< IP 14 Press release - City Council Li ening Post DRAFT MINUTES IP15 Planning and Zoning Comnffission: September 17 CITY OF IOWA CITY Date Tuesday, October 6, 2015 City Council Tentative Meeting Schedule SP1 LI Subject to change October 1, 2015 Time Meeting 5:00 PM Work Session Meeting 7:00 PM Formal Meeting Location Emma J. Harvat Hall Monday, October 19, 2015 4:00 PM Informal Gathering ICCSD Adm Bldg. 4:30 PM Joint Meeting / work session 1725 N. Dodge St. Tuesday, October 20, 2015 5:00 PM Work Session Meeting - - - - Emma J. Harvat Hall 7:00 PM Formal Meeting Tuesday, November 10, 2015 5:00 PM Work Session Meeting Emma J. Harvat Hall 7:00 PM Special Formal Meeting Monday, November 30, 2015 1-6:30 PM Work Session Meeting Ashton House Strategic Planning and Orientation 820 Park Road Tuesday, December 15, 2015 5:00 PM Work Session Meeting Emma J. Harvat Hall Formal Meeting 2016 Meeting Schedule TBD 1 r i CITY OF IOWA CITY 410 East Washington Street Iowa City, Iowa 52240-1826 (3 19) 356-5000 (319) 356-5009 FAX www.icgov.org City Council Work Session Agenda Tuesday, October 6, 2015 Emma J. Harvat Hall - City Hall 410 E. Washington Street 5:00 PM ■ Questions from Council re Agenda Items ■ Discuss Johnson County minimum wage ordinance [IP # 3 and 4 Info Packet of 10/1] ■ Agenda items for joint meeting [IP # 5 Info Packet of 10/1] ■ Information Packet Discussion [September 17, 24. October 1] ■ Council Time / Meeting Schedule ■ Pending Work Session Topics [IP # 6 Info Packet of 10/1] ■ Upcoming Community Events / Council Invitations CITY OF IOWA CITYIP3 MEMORANDUM Date: October 1, 2015 To: City Council From: Eleanor M. Dilkes, City Attorney Re: County Minimum Wage Ordinance: Legality and City Options BACKGROUND The Board of Supervisors has passed a minimum wage ordinance that by its terms applies within "any Johnson County municipality that has not adopted a conflicting ordinance." The ordinance, a copy of which is attached, takes effect on November 1, 2015. The County Attorney issued a memorandum to the Board of Supervisors dated August 14, 2015 regarding the legality of the ordinance, a copy of which is attached. The County Attorney essentially concludes that an argument can be made that the ordinance is within the County's home rule authority. At its work session on September 1, 2015 the City Council asked for my opinion on the likelihood that the ordinance, if challenged, would be upheld by the Iowa Supreme Court. This memo will set forth my conclusions and legal analysis. In addition, the memo will review the City's options regarding the applicability of the ordinance within the City limits. ISSUES A. What is the likelihood that the County's minimum wage ordinance will survive a legal challenge? B. What are the City's options when the County passes a county -wide ordinance? CONCLUSIONS A. Legality of County Minimum Wage Ordinance. The Iowa Supreme Court has not addressed the issue of whether a local minimum wage ordinance is within the home rule authority of a city or county in Iowa. I agree with the County Attorney that an argument can be made that the minimum wage ordinance is within the County's home rule authority. Were it not for the "private law" exception to home rule authority found in the Iowa Code's home rule provisions, I would conclude that a local municipal minimum wage ordinance is allowable under Iowa law as there is no express preemption, implied conflict preemption or implied field preemption. In my opinion, however, the ordinance is not likely to survive a challenge because of the "private law" exception to the County's home rule authority found at Section 331.301 (1) of the Iowa Code, which states as follows: This grant of home rule powers does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power. October 1, 2015 Page 2 It is clear that the minimum wage ordinance is a "private or civil law governing civil relationships." The primary issue is whether the ordinance was enacted "incident to an exercise of an independent county power." The County ordinance and the County Attorney's memo rely on two allegedly "independent powers" found in Chapter 331, entitled "County Home Rule Implementation", subsection 301 entitled "General Powers and Limitations": 1) the County's general police power (§331.301(1)); and, 2) the provision that prohibits counties from setting standards which are less stringent than those allowed by the state but allows counties to set standards that are "higher or more stringent than those allowed by state law, unless a state law provides otherwise." (§331.301(6)(a)). In my opinion, if the ordinance is challenged it is not likely that an Iowa court will conclude that either one of these provisions is an "independent power" within the meaning of Section 331.301(1) of the Iowa Code. B. City Options Article III, Section 39A of the Iowa Constitution provides: "If the power or authority of a county conflicts with the power and authority of a municipal corporation, the power and authority exercised by a municipal corporation shall prevail within its jurisdiction." To date, the City Council has not legislated with respect to the issue of wages paid by persons and entities other than the City of Iowa City. Thus, there currently is no conflict between County and City law. The Council has the following options: 1) Do nothing, in which case the County minimum wage ordinance will apply within the City limits. 2) Enact legislation that conflicts with the County ordinance, in which case the County ordinance will be inapplicable within City limits. This could take any number of forms from a complete "opt -out," to an "opt -out" or "opt -in" with conditions or substantive changes to the ordinance. DISCUSSION A. General Preemption Analysis The Iowa Constitution grants counties and cities in Iowa the "home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government...." Iowa Const. Article III, §§ 38A and 39A; cities were granted home rule by constitutional amendment in 1968 and counties were granted home rule by amendment in 1978. Thereafter, implementing statutes enacted by the legislature further defined the contours of what it means for a local ordinance to be "inconsistent" with state law. A local ordinance is "inconsistent" with state law only if it is "irreconcilable" with state law. Iowa Code §§ 331.301(4) and 364.2(3). A local ordinance cannot set standards that are lower or less stringent than state law but can set standards which are higher or more stringent than state law, unless state law provides otherwise. Iowa Code §§ 331.301(6)(a) and 364.3(3)(a). The Iowa Supreme Court has frequently addressed the issue of whether a particular local ordinance is preempted by state law and has recognized three distinct types of preemption — express preemption, implied conflict preemption and implied field preemption. In City of Davenport v. Seymour, 755 N.W.2d 533 (Iowa 2008) the Court reviewed the analytical framework: In order to determine whether municipal action is permitted or prohibited by the legislature, courts have developed the doctrine of preemption. The October 1, 2015 Page 3 general thrust of the preemption doctrine in the context of local affairs is that municipalities cannot act if the legislature has directed otherwise. When exercised, legislative power trumps the power of local authorities. We have recognized three types of preemption. The first type, generally known as express preemption, applies where the legislature has specifically prohibited local action in a given area. In cases involving express preemption, the specific language used by the legislature ordinarily provides the courts with the tools necessary to resolve any remaining marginal or mechanical problems in statutory interpretation. Where the legislature seeks to prohibit municipal action in a particular subject area, express preemption offers the highest degree of certainty with the added benefit of discouraging unseemly internecine power struggles between state and local governments. Express preemption is most consistent with the notion that "[I]imitations on a municipality's power over local affairs are not implied; they must be imposed by the legislature." Nonetheless, this court has found that express preemption alone is not a sufficient tool to vindicate legislative intent in all circumstances. In order to ensure maximum loyalty to legislative intent, this court has developed the residual doctrine of implied preemption, notwithstanding language in our cases disapproving of implied limitations on municipal power. Implied preemption arises in two situations where the intent of the legislature to preempt is apparent even though the legislature did not expressly preempt in unambiguous language. Implied preemption occurs where an ordinance prohibits an act permitted by statute, or permits an act prohibited by statute. Under these circumstances, although there is no express preemption, the statute on its face contains a command or mandate that by its very nature is preemptory. The theory of this branch of implied preemption is that even though an ordinance may not be expressly preempted by the legislature, the ordinance cannot exist harmoniously with a state statute because the ordinance is diametrically in opposition to it. The exclamation point of an express preemption provision is simply redundant in light of the mandatory legislative expression. Although we used the label "implied preemption" to distinguish it from express preemption, this type of preemption is perhaps more accurately described as "conflict preemption." Although implied preemption of the conflict variety occurs frequently, the legal standard for its application is demanding. In order to qualify for this branch of implied preemption, a local law must be "irreconcilable" with state law. Further, our cases teach that, if possible, we are to "interpret the state law in such a manner as to render it harmonious with the October 1, 2015 Page 4 ordinance." In applying implied preemption analysis, we presume that the municipal ordinance is valid. The cumulative result of these principles is that for implied preemption to occur based on conflict with state law, the conflict must be obvious, unavoidable, and not a matter of reasonable debate. A second form of implied preemption occurs when the legislature has so covered a subject by statute as to demonstrate a legislative intent that regulation in the field is preempted by state law. Like implied preemption based on conflict, the test for field preemption is stringent. Extensive regulation of area alone is not sufficient. In order to invoke the doctrine of field preemption, there must be some clear expression of legislative intent to preempt a field from regulation by local authorities, or a statement of the legislature's desire to have uniform regulations statewide. The notion behind field preemption is that the legislature need not employ "magic words" to close the door on municipal authority. Yet, courts are not to speculate on legislative intent, even in a highly regulated field. There must be persuasive concrete evidence of intent to preempt the field in the language that the legislature actually chose to employ. Field preemption is a narrow doctrine that cannot be enlarged by judicial policy preferences. In determining the applicability of field preemption, this court does not entertain arguments that statewide regulation is preferable to local regulation or vice versa, but focuses solely on legislative intent as demonstrated through the language and structure of a statute. Id. at 538-539 (internal citations omitted). An ordinance is "irreconcilable" with state law if it "prohibits an act permitted by statute or permits an act prohibited by statute." Baker v. City of Iowa City, 750 N.W. 2d 93, 99-100 (Iowa 2008). In order to be "irreconcilable" the conflict must be "obvious, unavoidable, and not a matter of reasonable debate." Madden v. City of Iowa City, 848 N.W.2d 40, 49 (Iowa 2014). In applying the Court's preemption analysis to the County's minimum wage ordinance, and setting aside the "private law exception" that is addressed later in this memo, it is my opinion that the legislature has neither expressly nor impliedly preempted the ordinance. In establishing a state minimum wage the state has made no statement about whether a county may adopt a higher minimum wage. Thus there is no express preemption.' The County's minimum wage ordinance sets a stricter standard than does state law, i.e. a higher minimum wage. The state's minimum wage prohibits a wage lower than $7.25. It does not permit a wage higher than $7.25; it simply sets a floor and is silent on what employers choose to pay their employees above that floor. Therefore, the County ordinance neither permits what the state prohibits nor prohibits what the state permits. State law, in describing the general powers and limitations of a county, expressly allows a county to set higher or more ' It is possible that in analyzing the private law exception the Court could choose to characterize it as an express preemption of laws regulating private or civil relationships in the absence of an independent power. October 1, 2015 Page 5 stringent standards than state law unless a state law provides otherwise. Iowa Code §331.301(6)(a). Because the standard for applying implied conflict preemption analysis is demanding, requires the local law to be "irreconcilable" with the state law and presumes the local law to be valid, implied conflict preemption does not defeat the ordinance. Finally, with respect to field preemption, while an argument can be made based on Chapters 91A and 91 D, which regulate how and where wages are to be paid, what deductions can be withheld, what the minimum wage must be and tasks the Iowa Labor Commissioner with enforcement, such an argument should fail as there is no clear expression of legislative intent to preempt this field from regulation by local authorities, or a statement of the legislature's desire to have uniform regulations statewide. B. Private Law Exception Section 331.301(1}{7) of the Iowa Code is set forth below. I have highlighted what is referred to as the "private law exception" in red. Highlighted in blue are the two provisions the County relies on as "independent powers" supporting the enactment of the minimum wage law. 331.301 General powers and limitations. 1. A county may, except as expressly limited by the Constitution of the State of Iowa, 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 county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents. This grant of home rule powers does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power. 2. A power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law. 3. The enumeration of a specific power of a county, the repeal of a grant of power, or the failure to state a specific power does not limit or restrict the general grant of home rule power conferred by the Constitution and this section. A county may exercise its general powers subject only to limitations expressly imposed by a state law. 4. An exercise of a county power is not inconsistent with a state law unless it is irreconcilable with the state law. 5. A county shall substantially comply with a procedure established by a state law for exercising a county power unless a state law provides otherwise. If a procedure is not established by state law, a county may determine its own procedure for exercising the power. 6. a. A county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise. b. A county shall not impose any fee or charge on any individual or business licensed by the plumbing and mechanical systems board for the right to perform plumbing, mechanical, HVAC, refrigeration, sheet metal, or hydronic systems work within the scope of the license. This paragraph does not prohibit a county from charging fees for the issuance of permits for, and inspections of, work performed in its jurisdiction. 7. A county shall not levy a tax unless specifically authorized by a state statute. 1) History of the private law exception. With the exception of the words "city' and '.county," the language found in section 331.301(1) is the same as that found in section 364.1 of the Iowa Code regarding the home rule authority of cities. Black's Law Dictionary defines private law as "the body of law dealing with private persons and their property and relationships." October 1, 2015 Page 6 Black's Law Dictionary, 1316 (9th ed. 2009). The private law exception in Iowa's current statutory home rule provisions is the exact language as that which first appeared in the Model Constitutional Provisions for Municipal Home Rule which was originally published in 1953 by the American Municipal Association ("AMA 1953 Model"), and subsequently included in the sixth edition of the National Municipal League's Model State Constitution. National Municipal League, Model State Constitution, Section 8.02 (6t' ed. 1963). A commentary by the principal author of the AMA 1953 Model states: The draft is distinctive in that it deals expressly with the enactment of private law. This is a phase of home rule which generally has not been adequately considered. Obviously, we do not wish to give our cities the power to enact a distinctive law of contracts, for example. On the other hand, the exercise of municipal powers is very likely to have important bearing upon private interests and relationships. The approach of the draft is to strike a balance by enabling home rule units to enact private law only as an incident to the exercise of some independent municipal power. Fordham, J.B., Home Rule — AMA Model, 44 Nat'l Munic. Rev. 137,142 (1955). While Fordham's AMA 1953 Model was the first time the issue of private law by home rule municipalities was expressly considered in a legislative context, in the first half of the 20th century the grant of home rule authority had not generally been understood to authorize municipalities to enact purely private law, i.e. law governing civil relationships. Sandalow, The Limits of Municipal Power Under Home Rule: A Role for the Courts, 48 Minn. L. Rev. 643, 674- 75 (1964); see also, Diller, The City and the Private Right of Action, 64 Stan. L. Rev. 1109, 1113 (2012) ("courts and commentators generally accepted as undisputed the abstract proposition that home rule did not include the authority to regulate private law"). The AMA 1953 Model has been described as an attempt to recognize the tension between expanded local authority and the potentially wide scope of the private law exception by allowing municipal private law when "incident to an exercise of an independent municipal power." Id. at 1119-1120. Only 8 states adopted the AMA 1953 Model compromise language or something similar in their constitutional or statutory home rule provisions, Iowa being one of them. Diller, 64 Stan. L. Rev. at 1119. The legislative history of how the exception came to be included in Section 364.1 of the Iowa Code is limited. Cities were granted "home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government" by amendment to the Iowa Constitution in 1968. Iowa Const. Art. III, §38A. Thereafter, substantial revisions were made to the Iowa Code to implement home rule for cities. The Final Report of the Municipal Laws Review Study Committee submitted in 1971 to the 64th General Assembly of the State of Iowa included no reference to the private law exception nor did Senate File 397 or House File 574, the bills for an act relating to home rule for cities and to establish the City Code of Iowa (the Iowa Code provisions governing cities), which were filed in March and April of 1971 during the First Session of the 60 General Assembly. After the House and Senate were unable to reach agreement during the First Session a subcommittee was formed for the purpose of reaching agreement. During the Second Session various amendments were proposed, including the amendment filed by Senator Gaudineer on January 1, 1972 to amend House File 574 to add the private law exception now found at Iowa Code section 364.1 and subsequently included in the county home rule provision, section 331.301(1). There was criticism of the AMA's private law exception prior to its inclusion in Iowa's home rule statute. In a 1970-71 Iowa Law Review article the author noted: "Iowa is presently in the process of drafting substantial revisions of its statutes concerning municipal corporations. Those drafting the proposed legislation are faced with the decision of whether to include specific reference to the enactment of private law by home rule municipalities." Comment, Municipal October 1, 2015 Page 7 Home Rule Powers; Impact on Private Legal Relationships, 56 Iowa L. Rev. 631, 641 (1970-71). In an insightful foreshadowing the author submitted that the inclusion of the private law exception by lawmakers would be unwise: The provision's limitation on municipal enactment of private law appears valid, since it has already been seen that most private law enactment by municipalities is merely incident to and an indirect result of a valid exercise of police power such as the power to regulate streets. Commendable as the draft may be in its effort to reasonably restrict municipal enactment of private law, however, it has received some severe criticism. The end result of the enactment of the AMA provision may well be the inhibition of municipal initiative to experiment with various solutions to local problems except where there has been an express legislative authorization of a specific police power.... Id. at 642-43; see also, Sandalow, 48 Minn. L. Rev. at 678-79 (criticizing the AMA private law exception); Diller, 64 Stan. L. Rev. at 1126 (criticizing exception). 2) Statutory construction: Before turning to the case law in other jurisdictions it is important to examine the language used by the Iowa legislature. Unlike the commentators who have been critical of the private law exception, the job of the Iowa Supreme Court is to "enforce the terms of a statute as written." Brown v. Star Seeds, Inc., 614 N.W.2d 577, 579 (Iowa 2000). The Court has repeatedly acknowledged that it is "bound by what the legislature said, not by what it should or might have said."' Marshall v. State, 805 N.W.2d 145, 160 (Iowa 2011); Anderson v. State, 801 N.W.2d 1, 1 (Iowa 2011) ("'Ours not to reason why, ours but to read, and apply. It is our duty to accept the law as the legislative body enacts it."') (quoting Holland v. State, 115 N.W.2d 161, 164 (1962)). The Supreme Court explains: If we do not follow the clear language of a statute ... but by a fallacious theory of construction attempt to impose our own ideas of what is best, even if in so doing we conceive that we are promoting the public welfare and achieving a desirable result, we are indulging in judicial legislation and are invading the province of the Legislative branch of the Government, or of the electorate in amending the basic law. The end does not in such cases justify the means. We must accept [the statute] as the legislature wrote it, and its meaning is definite and beyond fair debate. Anderson, 801 N.W.2d at 6-7 (quoting Holland, 115 N.W. 2d at 164). In looking at the statutory language it is clear that the private law exception is a restriction or limitation on the otherwise broad authority of a city or county to legislate "to protect and preserve the rights, privileges and property of the county or of its residents, and to preserve the peace, safety, health, welfare, comfort and convenience of its residents," unless inconsistent with the laws of the state. Iowa Code §§ 331.301(1) and 364.1. The County relies on its general police power as one of two "independent powers". Black's Law Dictionary defines "police power" as follows: "The inherent and plenary power of a sovereign to make all laws necessary and proper to preserve the public security, order, health, morality and justice." Black's Law Dictionary 1276 (9th ed. 2009). The term has been defined by the Iowa Supreme Court as follows: "The police power of a state extends to the protection of the lives, limbs, health, comfort, and quiet of all persons, and to the protection of all property within the state, and hence to the making of all regulations promotive of domestic order, morals, health, October 1, 2015 Page 8 and safety." State v. Schlenker, 84 N.W. 698, 699 (1900) (citing Railroad Co. v. Husen, 95 U.S. 465 ( 1878 )). The first sentence of Section 331.301(1) grants this police power (i.e. the power "to protect and preserve the rights, privileges, and property of the county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents") to a county except where inconsistent with state law. The second sentence starts by referencing the power granted in the first sentence: "This grant of home rule powers (i.e. the police power unless inconsistent with state law) does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power." (emphasis added) If the police power is an "independent power," the first two sentences of Section 331.301(1) would be read as follows: The county has police power, unless inconsistent with state law. This power does not include the power to enact private law unless incident to the police power. In other words, if the police power is an "independent power," the final sentence of section 331.301(1) has little, if any, meaning. Such an interpretation runs afoul of one of the basic rules of statutory construction that a statute will not be interpreted to make any portion of it superfluous. Miller v. Westfield Ins. Co., 606 N.W.2d 301, 305 (2000). "[A] statute [will not be construed] to make any part of it superfluous unless no other construction is reasonably possible. Accordingly, we presume the legislature included every part of a statute for a purpose, and intended each part be given effect." Id. (citations and internal quotations omitted). The second "independent power" on which the County relies is the provision that allows counties to set more stringent standards than the state. This provision is subsection 6(a) of Section 331 entitled "General Powers and Limitations". The same provision is found in section 364.3 of the Chapter entitled "Powers and Duties of Cities" in a subsection entitled "Limitation of Powers." The provision clarifies that the prohibition on cities and counties adopting laws that are "inconsistent with the laws of the general assembly" includes those which set "standards and requirements which are lower or less stringent than those imposed by state law," but not "standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise." If a higher or more stringent standard is an "independent power" the private law exception would be unnecessary as the provision regarding more stringent standards would allow laws setting more stringent standards for civil relationships and prohibit those setting lower or less stringent standards for civil relationships without the need for the private law provision. In addition, assuming for the sake of argument that the ability to set more stringent standards is an "independent power' that right is limited by the phrase "unless a state law provides otherwise" which the private law exception arguably does with respect to the regulation of civil relationships. Finally, there are a number of sections of the Iowa Code that grant cities and counties specific powers. After setting out the general grant of home rule authority the legislation for both cities and counties goes on to set forth a number of powers such as the following for counties: powers relating to services (§331.382); abatement of public health and safety hazards (§331.384); powers relating to emergency services (§331.385); mental health and disability services (§331.388 et seq.) general financial powers and duties (§331.401 et seq.); county zoning (Chapter 335). In addition there are sections of the Iowa Code that grant authority to counties and cities which are not part of the home rule "implementation" provisions. For example, counties and cities are granted eminent domain authority in Chapter 6A of the Iowa Code. Iowa Code § 6A.4 (2015). 3) Case law from other States. Given the limited number of states whose constitutional and statutory provisions include some version of the "private law exception." there is not an abundance of case law. However, the weight of the case law in other states does not bode well for the County's minimum wage ordinance. The law uniformly supports the October 1, 2015 Page 9 conclusion that the employer/employee relationship is a civil and private relationship and a minimum wage law is a regulation of that relationship. See, New Mexicans for Free Enterprise v. City of Santa Fe , 126 P.3d 1149, 1160 (N.M. Ct. App. 2005); Campaign for a Living Wage v. City of New Orleans, 825 So. 2d 1098,1116 (La. 2002) (Weimar, J. concurring ); Schwartz, The Logic of Home Rule and the Private Law Exception, 20 U.C.L.A. L. Rev. 671, 695 (1972-1973). The New Mexico Court of Appeals explains: Plaintiffs contend that the ordinance is a private or civil law governing the civil relationship of employer and employee because it "seeks to establish legal duties between private businesses and their private employees, and it establishes a new cause of action against private businesses that do not pay the wage." We agree. While there are no bright -line divisions between public law and private law, private law has been defined as consisting "of the substantive law which establishes legal rights and duties between and among private entities, law that takes effect in lawsuits brought by one private entity against another." That definition certainly applies to the ordinance, which sets a mandatory minimum wage term for labor contracts between private parties that the employee may enforce by bringing a civil action against the employer. The fact that the city administrator may punish violation of the ordinance as a misdemeanor does not convert the ordinance into "public law" nor does it alter the basic nature of the ordinance, which is to set and enforce a key contract term between private parties. The relationship between private employer and employee has been described as a civil relationship because it is governed by the civil law of contracts. We conclude that the ordinance is a private or civil law governing civil relationships within the meaning of the home rule amendment. 126 P. 3d at 1159. (internal citations omitted) The fighting issue is whether an "independent power" exists. While courts sometimes focus on how directly the legislation impacts the private relationship, and other times focus on the source of the local entity's power, they have no trouble sustaining a municipal health and safety regulation that has an indirect impact on a private relationship. See, e.g., Chandley Enterprises, Inc. v. City of Evansville, 563 N.E.2d 672, 676 (Ind. Ct. App. 1990) (rejecting challenge to ordinances governing the amount of light, ventilation and heating facilities which occupied dwellings must contain and providing that utilities to occupied dwellings could not be disconnected); Noble v. Alis, 474 N.E.2d 109, 113 (Ind. Ct. App. 1985) (rejecting "private law" challenge to the provision of a municipal code that required rental properties to be properly registered or permitted); Tucker v. Crawford, 315 A.2d 737, 740-41 (Del. Sup. 1974) (rejecting challenge to ordinance that required the seller of real property to have it inspected for housing code violations). Similarly, the zoning power of a city has been recognized as an "independent power." Board of Appeals of Hanover v. Housing Appeals Committee, 294 N.E.2d 393, 409 (Mass. 1973) ("Unlike the recent rent control ordinance which we struck down in the Marshal House case because of its direct effect upon civil relationships, any effect zoning ordinances or by-laws may have on a civil relationship is incidental to the exercise of the town's independent police powers to control its land usages in an orderly, efficient and safe manner to promote the public welfare."); see also, Bloom v. City of Worcester, 293 N.E.2d 268, 274-276 (Mass. 1973) (upholding validity of human rights ordinance). However, when an ordinance directly affects and seeks to dictate the terms of a private relationship and there is no state legislation that specifically grants the city the authority to regulate that relationship, courts in Massachusetts, Georgia, Indiana and a lengthy concurring opinion in Louisiana have determined that the ordinance is prohibited by the private law exception. Marshal House, Inc. v. Rent Review and Grievance Bd. of Brookline, 260 N.E.2d October 1, 2015 Page 10 200, 206-07 (Mass. 1970) (rent control ordinance found illegal); City of Bloomington v. Chucknev, 331 N.E.2d 780, 783 (Ind. Ct. App. 1975) (City's adoption of uniform landlord tenant act "that directly affect[s] the landlord -tenant relationship... cannot be upheld as an incident to the exercise of an independent municipal power"); City of Atlanta v. McKinney, 454 S.E. 2d 517, 520-21 (Ga. 1995); Campaign for a Living Wage v. City of New Orleans, 825 So. 2d 1098,1108 (La. 2002) (Weimar, J. concurring) (opining that even if the majority had determined that the state did not have the power to expressly prohibit cities from adopting a minimum wage, the private law exception prevented the city from doing so) (relying on earlier Louisiana Court of Appeals case Javers v. Council of City of New Orleans, 351 So. 2d 247 (La. App. 1977) holding that rent control regulation would constitute an impermissible regulation of the private landlord - tenant relationship). In Marshal House the Massachusetts Supreme Court reasoned as follows: We conclude that it would be, in effect, a contradiction (or circuitous) to say that a by-law, the principal objective and consequence of which is to control rent payments, is also merely incidental to the exercise of an independent municipal power to control rents. We perceive no component of the general municipal police power, other than the regulation of rents itself, to which such regulation fairly could be said to be incidental.... We apply the ambiguous exclusion in art. 89, § 7 (5) [private law exception], in accordance with what appears to us to be the most probable meaning of the words of the exclusion, interpreted with reasonable breadth, as the nature of each other exclusion indicates should be done. In particular, we hold that § 7 (5) prevents the adoption of local rent control by-laws in the absence of an explicit delegation to municipalities by the Legislature of power to engage in such regulation of the landlord -tenant relationship. 260 N.E.2d at 206-07. These courts have also been unwilling to find an "independent power' in specific powers of a city such as the adoption of housing codes to insure safety, regulation of traffic and city streets, operation of water and sewer systems, or zoning power when the challenged regulation is unrelated to the designated power. For example, in City of Bloomington v. Chucknev, the Indiana Court of Appeals sustained a challenge to a city's attempt to adopt portions of the Uniform Residential Landlord and Tenant Act, stating: We are of the opinion that portions of Ordinance 72-76 so directly affect the landlord -tenant relationship that they cannot be upheld as an incident to the exercise of an independent municipal power. The Ordinance goes so far as to dictate specific terms which must be included in every residential lease agreement entered into within the City of Bloomington. Many of these terms are wholly unrelated to city housing and safety codes and cannot, therefore, be incident to the city police powers in those areas. For example, section 12, paragraph 10 of the Ordinance provides that "landlord and tenant shall agree that tenant may entertain guests on the premises at any and all times...." Section 12, paragraph 3 provides that "entry may be made only with tenant permission, unless made between the hours of 9:00 A.M. and 5:00 P.M. and after advance notice of at least twenty- four (24) hours to the tenant...." October 1, 2015 Page 11 While this summary is not complete it illustrates the fact that Ordinance 72-76 governs the landlord tenant relationship otherwise than as an incident to the exercise of the city's police powers in regard to housing and safety codes as is contended by the City. A review of those sections of the ordinance stricken by the trial court shows that in each instance there was an attempt to govern a "private or civil relationship", an activity proscribed by IC 1971, 18-1-1.5-19. 331 N.E. 2d at 783. Similarly, in Bannerman v. Fall River, 461 N.E. 2d 793, 796 (Mass.1984) the Massachusetts Supreme Court struck down a conversion ordinance prohibiting owners of multi -family dwellings of 12 or more units from removing rental units from the rental stock without a certificate from the city allowing the unit to be removed from the rental market, concluding, in part that neither the city's powers to operate the water and sewer system nor its power to regulate city streets were "independent powers" that could sustain the ordinance; See also, CHR General, Inc. v. Newton, 439 N.E.2d 788, 789-790 (Mass. 1982) (holding that an ordinance requiring city approval of conversion from rental to owner -occupied structure, right of first refusal to tenant to purchase and an adequate tenant relocation plan was not incident to the City's zoning power, which is the power to regulate the use of property, not the ownership thereof). am aware of one Iowa district court case that has addressed the private law exception. While this case has no precedential value, it is instructive to see how one Iowa judge has interpreted the provision. In Landlords of Linn County and Rehman Enterprises v. City of Cedar Rapids (Linn County Case No. EQCV069920; July 1, 2011) Judge Baumgartner found the above noted cases persuasive in concluding that a Cedar Rapids ordinance which required every residential rental agreement to include a "crime free lease addendum" was not enacted incident to an exercise of an independent city power, stating: This Court concludes that new Chapter 29 was not enacted incident to an exercise of an independent city power. The independent city power must be something other than the general police power granted in the first sentence of Section 364. 1, to "preserve the rights, privileges, and property of the city or of its residents, and to improve the peace, safety, health, welfare, comfort and convenience of its residents". Defendant has not identified any independent power to justify the ordinance and their reliance on their power to enact housing codes is misplaced. Id. at p. 11. The one arguable exception to the weight of authority cited above is Mexicans for Free Enterprise v. City of Santa Fe, 126 P.3d 1149 (N.M. Ct. App. 2005), in which the New Mexico Court of Appeals upheld a local minimum wage ordinance against a "private law exception" challenge. The Court concluded that "independent municipal power" means any power other than home rule, including elements of the police power. Id. at 1161. The Court held that the New Mexico statutes giving municipalities the power to provide for the general welfare of their residents, the police power to generally protect the property of its municipality and its residents, and the police power to preserve peace and order within the municipality, were powers independent of Santa Fe's home rule authority for the purposes of the private law exception. However, Mexicans for Free Enterprise is of limited value in Iowa. In New Mexico, there are home rule cities that have adopted a home rule charter and other cities that choose not to adopt a home rule charter and still depend on the legislature for their power to act. The New Mexico Supreme Court explains the scheme as follows: October 1, 2015 Page 12 Prior to 1970, municipal home rule did not exist in New Mexico. At that time, all municipalities in the state depended on the state legislature for their power to act. They looked to state statutes for express or implied grants of authority, and if they did not find such authority, they could not act. Thus, the state exercised plenary control over municipal governments except as limited by the state or federal constitutions. In 1970, New Mexico adopted a home rule amendment to our Constitution and thereby authorized a change in the then existing relationship between state and local governments. That amendment establishes the right of the citizens of a municipality to adopt a home rule charter. A municipality adopting such a charter becomes a "home rule municipality" and may then "exercise all legislative powers and perform all functions not expressly denied by general law or charter." Thus, home rule municipalities do not look to the legislature for a grant of power to legislate, but only look to statutes to determine if any express limitations have been placed on that power. Those municipalities that choose not to adopt a home rule charter must still depend on the legislature for their power to act. State ex.rel. Haynes v. Bonem, 845 P.2d 150, 154 (N. M. 1992) (internal citations omitted); see also, Mexicans for Free Enterprise, 126 P.3d at 1157-1158. Santa Fee has adopted a home rule charter and is a home rule municipality under the New Mexico Constitution and the Municipal Charter Act of the New Mexico legislature. Mexicans for Free Enterprise, 126 P. 3d at 1156. Santa Fe relied on two separate bases for the authority to pass the ordinance: (1) the powers given to home rule municipalities by the section of the constitution known as the "home rule amendment"; and (2) the police and general welfare powers delegated by the legislature to all municipalities. Id. In determining that "independent power" meant any power other than home rule, the Court found that the general welfare and police powers given to all municipalities were separate from the home rule power that was limited by the private law exception. The Court stated: With respect to public purpose within a municipality's delegated powers, the legislature has given all municipalities the power to provide for the general welfare of their residents by the general welfare clause in Section 3-17-1(B). In addition, the legislature has given all municipalities the police power to "protect generally the property of its municipality and its inhabitants" and to "preserve peace and order within the municipality" by Section 3-18-1(F) and (G). While these are separate powers, they may be treated as one. We consider these powers to be independent municipal powers within the meaning of the home rule amendment because they are powers delegated to municipalities completely independent from the home rule amendment. Id. at 1162. (internal citations omitted) In Iowa all cities and counties have home rule authority, regardless of the form of government they operate under. While a city in Iowa may choose a Home Rule Charter form of government under Chapter 372 of the Iowa Code, it need not do so in order to have the police power to act to protect the health, welfare and safety of its citizens. Similarly, while the Iowa Code provides for alternative forms of county government all counties have home rule authority pursuant to the provisions of Iowa Code Section 331.301. In other words, as discussed under the statutory interpretation section above, in Iowa home rule authority is the authority to exercise police power in connection with local affairs except in those cases in which the legislature has preempted its ability to do so. Davenport v. Seymour, 755 N.W. 2d at 538 (noting that Iowa's October 1, 2015 Page 13 legislative home rule allows cities to exercise "police power" when not inconsistent with state law.). Unlike the situation with a home rule city in New Mexico, the County cannot point to a general police power that is separate from its home rule power. As a commentator critical of the private law exception as a return to the days when specific legislation was required for cities to act has observed: "In the New Mexico example, it just so happened that the state of New Mexico had also passed a 'general welfare' statute for cities thereby allowing the courts this awkward doctrinal route to upholding Santa Fe's minimum wage." Diller, 64 Stan. L. Rev. at 1126. Iowa does not have the "general welfare" legislation that allows for this "awkward doctrinal route." Rather, Iowa's home rule legislation is similar to the Massachusetts home rule language at issue in the Marshal House case. When the constitutional and statutory framework of the Massachusetts and New Mexico home rule schemes are examined the results in Marshal House and Mexicans for Free Enterprise can be reconciled. Both courts conclude that the private law exception requires a power other than the home rule power. In New Mexico general police powers are given to cities independent from home rule authority. In Massachusetts, like Iowa, home rule power is the police power to legislate for the public health, welfare and safety of local residents. z C. Conflicts Between City and County Legislation There is no case law interpreting the language in Article III, Section 39A of the Iowa Constitution stating that when the "power or authority of a county conflicts with the power and authority exercised by a municipal corporation, the power and authority exercised by a municipal corporation shall prevail within its jurisdiction.' In 1986 the Iowa Attorney General issued an opinion concluding that "the constitution does not exclude, but impliedly recognizes, the authority of the county to legislate county -wide" subject to the limitation that the "power and authority" of a city prevails in the case of a conflict. 1985-86 Op. Atty. Gen. Iowa 105. The Attorney General recognized that "questions may arise concerning what constitutes a conflict with the 'power and authority' of a city," but declined to address the issue, stating: "Under what circumstances a conflict exists between the power and authority of a county and the power and authority of a city is an issue we would address when a particular dispute arises." Id. I could find no legislative history that sheds light on the meaning of this provision. The language of the Iowa constitution is more ambiguous than that found, for instance, in the Illinois Constitution, which simply states: "If a home rule county ordinance conflicts with an ordinance of a municipality, the municipal ordinance shall prevail in its jurisdiction." Illinois Const. art. VII, §6. Determining whether two ordinances are in conflict is far simpler than determining whether the "power and authority" of an Iowa county and city are in conflict. Under the Iowa Constitution, the analysis is complicated by the issue of whether the County has exercised a "power and authority" that it possesses. I assume, for the sake of this analysis, that "power and authority exercised" means the enactment of legislation by motion, resolution or ordinance. The issue of whether either entity has the "power and authority" to legislate with respect to a minimum wage is addressed separately in the first section of the memo. 2 Note that in Judge Baumgartner's opinion she relied on the conclusion of the New Mexicans for Free Entemrise decision that "independent power' means "any power other than home rule power" in determining that the ordinance requiring a crime free lease addendum in every lease was not within the City's home rule authority. Landlords of Linn County and Rehman Entemrises v. City of Cedar Rapids p. 10 (Linn County Case No. EQCV069920; July 1, 2011). October 1, 2015 Page 14 Encl. Cc: City Manager Assistant City Manager City Clerk Janet M. Lyn*" County Attorney Dana Christiansen First Assistant County Attorney Office of the Johnson County Attorney To: Board of Supervisors From: Janet Lyness, Johnson County Attorney RE: Legality of Minimum Wage Ordinance Date: August 14, 2015 Criminal Anne M. Whey Michael D. Brennan Elizabeth A. Beglin Rachel Zimmermann Smith Jude T. Pannell Naeda Elliott Elizabeth Dupuich Michael H. Ringle Juvenile Patricia A. Weir Emily Voss Civil Andrew B. Chappell Susan D. Nehring Child Support 1{888)229-9223 Below is the research on the legality of Johnson County adopting its own Minimum Wage Ordinance setting a minimum wage in excess of the one set by state law. The review included, among other things, the federal and state minimum wage laws, the legislative history of the state minimum wage law, portions of the Iowa Code setting forth various county powers, Iowa cases and secondary sources addressing traditional state law preemption in the context of home rule, and cases and secondary sources addressing the private law exception to home rule. FEDERAL LAW PREEMPTION The federal minimum wage, as set forth in the Fair Labor Standards Act, does not preempt local minimum wage laws. In fact, the federal law specifically reserves for local governmental bodies, as well as states, the ability to adopt their own, higher, minimum wages, stating that "[n]o provision of this chapter or of any order thereunder shall excuse noncompliance with any Federal or State law or municipal ordinance establishing a minimum wage higher than the minimum wage established under this chapter ...." 29 U.S.C. § 218(a) (2015). Thus, if preemption is to be had, it will come from state law. TRADITIONAL STATE LAW PREEMPTION In Iowa, cities and counties are given home rule authority pursuant to an amendment to the Iowa Constitution. The home rule authority granted to each is largely identical. With respect to counties, Article III, § 39A of the Iowa Constitution sets forth the County Home Rule Amendment, adopted in 1978. It provides: Counties or joint county -municipal corporation governments are granted home rule power and authority, not inconsistent with the laws of the general assembly, to determine their local affairs and government, except that they shall not have power to levy any tax unless expressly authorized by the general assembly. The general assembly may provide for the creation and dissolution of joint county -municipal corporation governments. The JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 general assembly may provide for the establishment of charters in county or joint county - municipal corporation governments. If the power or authority of a county conflicts with the power and authority of a municipal corporation, the power and authority exercised by a municipal corporation shall prevail within its jurisdiction. The proposition or rule of law that a county or joint county -municipal corporation government possesses and can exercise only those powers granted in express words is not a part of the law of this state. Iowa Const. art. III, § 39A. After being formally adopted, this constitutional amendment was "implemented" by the legislature when it readopted and amended several portions of Iowa Code Chapter 331. Specifically, Iowa Code § 331.301 provides, in relevant part: 331.301 General powers and limitations. 1. A county may, except as expressly limited by the Constitution of the State of Iowa, 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 county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents. This grant of home rule powers does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power. 2. A power of a county is vested in the board, and a duty of a county shall be performed by or under the direction of the board except as otherwise provided by law. 3. The enumeration of a specific power of a county, the repeal of a grant of power, or the failure to state a specific power does not limit or restrict the general grant of home rule power conferred by the Constitution and this section. A county may exercise its general powers subject only to limitations expressly imposed by a state law. 4. An exercise of a county power is not inconsistent with a state law unless it is irreconcilable with the state law. 5. A county shall substantially comply with a procedure established by a state law for exercising a county power unless a state law provides otherwise. If a procedure is not established by state law, a county may determine its own procedure for exercising the power. 6. a. A county shall not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise. b. A county shall not impose any fee or charge on any individual or business licensed by the plumbing and mechanical systems board for the right to perform plumbing, mechanical, HVAC, refrigeration, sheet metal, or hydronic systems work within the scope of the license. This paragraph does not prohibit a county from charging fees for the issuance of permits for, and inspections of, work performed in its jurisdiction. JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 7. A county shall not levy a tax unless specifically authorized by a state statute. Iowa Code § 331.301 (2015). Under this Constitutional/statutory scheme, often referred to as legislative home rule, "the legislature retains the unfettered power to prohibit a municipality from exercising police powers, even over matters traditionally thought to involve local affairs. Conversely, as long as an exercise of police power over local affairs is not `inconsistent with the laws of the general assembly,' municipalities may act without express legislative approval or authorization." City of Davenport v. Seymour, 755 N.W.2d 533, 538 (Iowa 2008) (quoting Iowa Const. art. III, § 38A)). Thus, a municipality or county may not act on a matter if the legislature has directed otherwise because, when exercised, the state's legislative power `trumps" the local power. See id. Since the adoption of Municipal and County Home Rule, Iowa appellate courts have been called upon to determine whether local legislation is inconsistent with state law or otherwise exceeds a county's home rule authority. Generally, local ordinance is inconsistent with state law only when it is irreconcilable with state law. Iowa Code §§ 331.301(4), 364.2(3). This irreconcilability is often explained as when an ordinance "prohibits an act permitted by statute, or permits an act prohibited by statute." Baker v. City oflowa City, 750 N.W.2d 93, 99-100 (Iowa 2008) (internal citations omitted). And when determining just what the legislature has permitted or prohibited, the courts "look to the legislative intent in enacting the state statutes and [] require that any local ordinance remain faithful to this legislative intent, as well as to the legislative scheme established in the relevant state statutes." Id. at 100 (quoting Goodell v. Humboldt County, 575 N.W.2d 486, 500 (Iowa 1998)). In applying these concepts, the Iowa Supreme Court has recognized three distinct types of preemption—express preemption, implied conflict preemption and implied field preemption. Express preemption "applies where the legislature has specifically prohibited local action in a given area." Seymour, 755 N.W.2d at 538. The Supreme Court recognizes that express preemption "is most consistent with the notion that `limitations on a municipality's power over local affairs are not implied; they must be imposed by statute."' Id. (quoting City of Des Moines v. Gruen, 457 N.W.2d 340, 343 (Iowa 1990)). Still, the Court has gone well beyond the bounds of express preemption in determining whether local ordinances are irreconcilable with state law. "In order to ensure maximum loyalty to legislative intent, [the Supreme Court] has developed the residual doctrine of implied preemption, notwithstanding language in [Supreme Court] cases disapproving of implied limitations on municipal power." Id. As noted above, implied preemption comes in two forms. Implied conflict preemption occurs when, "although there is no express preemption, the statute on its face contains a mandate that by its very nature is preemptory." Id. Put another way, "even though an ordinance may not be expressly preempted by the legislature, the ordinance cannot exist harmoniously with a state statute because the ordinance is diametrically on opposition to it." Id. The Supreme Court describes the legal standard for conflict preemption as "demanding." Id. at 539. The Court has ruled that a local law must be irreconcilable with the state law in order to be preempted by it; that the Court presumes that the municipal ordinance is valid; and, if possible, the Court must "interpret the state law in such a manner as to render it harmonious with the ordinance." Id. "In JOHNSON COUNTY COURTHOUSE • 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 order to be irreconcilable, the conflict [between the state and local law] must be obvious, unavoidable, and not a matter of reasonable debate." Madden v. City oflowa City, 848 N.W.2d 40, 49 (Iowa 2014) (internal citations omitted). "When a state law merely sets a standard, a local law setting a higher standard would not conflict with the state law and would be authorized under section 331.301(6)." Goodell, 575 N.W.2d at 500. Moreover, legislative silence on a matter cannot "be interpreted as a prohibition of local action under home rule in light of [the Supreme Court's] obligation to harmonize and reconcile a statute with an ordinance whenever possible." Id. at 50. Implied field preemption, on the other hand, "occurs when the legislature has so covered a subject by statute as to demonstrate a legislative intent that regulation in the field is preempted by state law." Seymour, 755 N.W.2d at 539. Similar to conflict preemption, the test for field preemption is stringent. Id. "Extensive regulation of [an] area alone is not sufficient. In order to invoke the doctrine of field preemption, there must be some clear expression of legislative intent to preempt a field from regulation by local authorities, or a statement of the legislature's desire to have uniform regulations statewide." Id. (citations omitted). Even though there are no "magic words" that must be used by the legislature, "[t]here must be persuasive concrete evidence of an intent to preempt the field in the language that the legislature actually chose to employ." Id. The Supreme Court describes field preemption as "a narrow doctrine that cannot be enlarged by judicial policy preferences." Id. As such, arguments that statewide regulation of an area is preferable to local regulation, alone, carry no weight. See Goodell, 575 N.W.2d at 498 ("It would be inconsistent with Iowa's county home rule amendment, our home rule statutes and this court's prior cases to imply preemption based on an argument that statewide regulation of an area is preferable to local regulation, in the absence of an expression of legislative intent to completely regulate the area in question.") In applying these rules of law to the issue at hand, whether the state's minimum wage law preempts the County from adopting a local minimum wage law that sets a higher minimum wage, it is clear there is no express preemption. The state minimum wage law, Iowa Code Chapter 91 D, is silent on whether a county or city may also adopt its own minimum wage law. The administrative rules also reference no limitations on local ordinances. Regarding implied conflict preemption, given the presumption of validity, the requirement that an interpreting court harmonize the state and local statutes, and the fact that any conflict cannot be reasonably subject to any debate, it would appear a local minimum wage is not irreconcilable with the state minimum wage. The state minimum wage act arguably does little more than set a minimum standard that must be met with respect to the wages to be paid in the state. Allowing a city or county to adopt a higher standard would not seem to create the level of conflict necessary to find implied conflict preemption. Regarding implied field preemption, the doctrine is also to be very narrowly interpreted. As for the state minimum wage statute, it contains relatively little regulation overall. In fact, it can be contained on a single page. Additionally, there is no language in the statute (or the legislative history) that expresses the legislature's intent to preempt the field or even that there should be uniformity throughout the state. As such, it would also appear that a local minimum wage ordinance would not be subject to implied field preemption. JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 THE PRIVATE LAW EXCEPTION As part of the home rule implementing legislation adopted in 1981, the Iowa legislature added language to Section 331.301 that contains what is known as the private law exception to home rule. Specifically, Section 331.301(1) provides that: "A county may, except as expressly limited by the Constitution of the State of Iowa, 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 county or of its residents, and to preserve and improve the peace, safety, health, welfare, comfort, and convenience of its residents. This grant of home rule powers does not include the power to enact private or civil law governing civil relationships, except as incident to an exercise of an independent county power." (emphasis provided). This means that even if a local minimum wage ordinance can withstand traditional state law preemption analysis, it could still be found to be preempted by state law if it (1) constitutes a private or civil law governing civil relationships, and (2) is not adopted incident to an exercise of an independent county power. There do not appear to be any Iowa Appellate cases interpreting the private law exception to home rule, as it is set out in Section 331.301(1).' There are, however, numerous other states that have the private law exception in either their constitutional home rule language or the legislation associated with it. Several of these states have produced appellate decisions interpreting, on some level or another, the private law exception to home rule. Based on these cases, the difficulty in interpreting the private law exception often comes not from determining whether a particular ordinance constitutes a private or civil law governing civil relationships, but, rather, just what it means for such an ordinance to be incident to an exercise of an independent county or city power—or, based on the language found in some of the states' statutes or constitutions, what it means for an ordinance to be an incident to an exercise of an independent county or city power. (It appears that in some states the word incident is used as a noun while in others, and apparently in Iowa, it is used as an adjective.) The cases interpreting this language appear to depend heavily on both the nature of the ordinance being considered and the precise language of the exception as found in the state's statutes or constitution. Some examples follow. One of the cases most often cited in regards to the private law exception comes from Massachusetts. In Massachusetts, the private law exception is contained in the constitution as a specific limitation on the power of local governments. Specifically, Article II, Section 7(5), provides that nothing in the constitution is intended to grant to any city the power to "enact private or civil law governing civil relationships except as an incident to an exercise of an independent municipal power." The Supreme Judicial Court of Massachusetts set out to interpret this language in the 1970 case of Marshal House, Inc. v. Rent Review and Grievance Board of Brookline, 260 N.E.2d 200 (Mass. 1970). The local ordinance in question in Marshal House was a local rent control ordinance that had been adopted by a city. The Court started by pointing out 11 know of one Iowa District Court case interpreting the private law exception, from the context of a Cedar Rapids ordinance requiring certain language be included into residential lease agreements. In Landlords of Linn County and Rehman Enterprises v. City of Cedar Rapids, Linn County Case No. EQCV069920, Judge Baumgartner cited many of the cases below in finding that the ordinance at issue was prohibited by the private law exception to home rule. JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 that the language from Article II, Section 7(5) is ambiguous and that the ambiguity is not substantially clarified by the legislative history. The Court then cites a law review article interpreting similar language from the American Municipal Association's model home rule legislation. "This is a phase of home rule which has not generally been adequately considered. Obviously, we do not wish to give our cities the power to enact a distinctive law of contracts, for example. On the other hand, the exercise of municipal powers is very likely to have important bearings upon private interests and relationships. The approach of the ... [language now in § 7(5)] is to strike a balance by enabling home rule units to enact private law only as an incident to the exercise of some independent municipal power." Id. at 204 (alteration in original) (internal citation omitted). With this balancing in mind, the Court found that the rent control ordinance at issue was indeed a private or civil law governing civil relationships, despite the public objectives that went behind its adoption. Id. at 205-06. Regarding whether the ordinance was an incident to a separate city power, the municipal defendant argued that a rent control ordinance would be incident to its police powers. The Court, however, appears to hold that "a municipal civil law regulating a civil relationship is permissible (without prior legislative authorization) only as an incident to the exercise of some independent, individual component of the municipal police power." Id. at 206-07. That is, in order to enact a rent control ordinance, doing so would have to be an incident to some other police power rather than an end unto itself. The Court then struck down the ordinance. There are several other cases from Massachusetts which follow this general pattern and cite Marshal House. See, e.g., Bannerman v. City of Fall River, 461 N.E.2d 793 (Mass. 1984). A few years after Marshal House the Superior Court of Delaware upheld an ordinance that required a seller of real property to have it inspected for housing code violations and created the presumption of a warranty when the seller failed to do so. Tucker v. Crawford, 315 A.2d 737 (Del. Sup. 1974). The Court found that the ordinance was adopted as an incident to the city's police powers and, therefore, was adopted as an incident to an independent city power. Id. at 740. Like Iowa's, the private law exception is found in Delaware's code as opposed to its constitution. Unlike Iowa's, however, the code section involved does not specifically reference a grant of traditional police powers in addition to home rule power. In 1975, the Indiana Court of Appeals decided City of Bloomington v. Chuckney, 331 N.E.2d 780 (Ind. Ct. App. 1975). At issue in Chuckney was the City of Bloomington's attempt to adopt portions of the Uniform Residential Landlord and Tenant Act as a local ordinance. In Indiana, the private law exception is contained only in its code, as opposed to its constitution, and the phrase "an incident" is used. The Court held that "portions of [the ordinance] so directly affect the landlord -tenant relationship that they cannot be upheld as an incident to the exercise of an independent municipal power." Id. at 783. The Indiana Court appears to focus on just how pervasive the ordinance is, with the presumption being that if the ordinance interfered less with the landlord -tenant relationship it may have survived the challenge. Chuckney was later distinguished by the Indiana Court of Appeals in a case addressing a City of Bloomington ordinance that required rental properties to be properly registered or permitted. In Noble v. Alis, 474 N.E.2d 109 (Ind. Ct. App. 1985), the Court found that, unlike in Chuckney, the requirements of the ordinance were directly related to the city's housing code and a valid exercise of the city's power. JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 There are two more -recent cases related to local minimum wage ordinances in Louisiana and New Mexico. In New Orleans Campaign for a Living Wage, et al., v. City of New Orleans, 825 So.2d 1098 (La. 2002), the Louisiana Supreme Court upheld the constitutionality of state legislation explicitly prohibiting local minimum wage ordinances. One of the concurring justices, however, wrote a detailed opinion describing how the judge believed that, even absent the specific state prohibition, the private law exception would have prohibited a local minimum wage ordinance. Specifically, the concurrence expressed agreement with the Marshal House court in finding that the phrase private or civil relationship must be "broad enough to include law controlling ordinary and usual relationships between employers and employees." Id. at 1117. Under Louisiana law, this finding would have been sufficient to find the local ordinance was improper because the Louisiana legislature had not adopted the language allowing such an ordinance when incident to an independent municipal power. The New Mexico Court of Appeals considered a local minimum wage ordinance in New Mexicans for Free Enterprise v. City of Santa Fe, 126 P.3d 1149 (N.M. 2005). In New Mexico, the private law exception to home rule is contained in the constitution and is written similarly to the wording used in Section 331.301(1). "This grant of powers shall not include the power to enact private or civil laws governing civil relationships except as incident to the exercise of an independent municipal power ...." N.M. Const. art. X, § 6(c). The New Mexico court began by going through a traditional preemption analysis, similar to the above, before determining that a local minimum wage act is not expressly denied by the state law. The Court next addressed the private law exception, starting with whether the ordinance was a private or civil law: Plaintiffs contend that the ordinance is a private or civil law governing the civil relationship of employer and employee because it seeks to establish legal duties between private businesses and their private employees, and it establishes a new cause of action against private businesses that do not pay the wage. We agree. While there are no bright - line divisions between public law and private law ... private law has been defined as consisting of the substantive law which establishes legal rights and duties between and among private entities, law that takes effect in lawsuits brought by one private entity against another. That definition certainly applies to this ordinance, which sets a mandatory minimum wage term for labor contracts between private parties that the employee may enforce by bringing a civil action against the employer. The fact that the city administrator may punish violation of the ordinance as a misdemeanor does not convert the ordinance into public law nor does it alter the basic nature of the ordinance, which is to set and enforce a key contract term between private parties. The relationship between private employer and employee has been described as a civil relationship because it is governed by the civil law of contracts. We conclude that the ordinance is a private or civil law governing civil relationships within the meaning of the home rule amendment. New Mexicans for Free Enterprise, 126 P.3d at 1160 (internal citations omitted). The Court then conducted an analysis of whether, despite being a private law, the ordinance was adopted incident to an independent municipal power. Despite the plaintiffs' urging, the Court declined to follow the reasoning of the Marshal House court with respect to what constitutes an independent municipal power, arguing "because New Mexico municipalities have been delegated a generic JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 police and general welfare power, we think that forcing a municipality to point to an `individual component' of its police power puts an unduly restrictive gloss on the exception and reads words into the home rule amendment that are not there." Id. at 1161. Instead, the Court took a much broader view of the phrase independent municipal power. The exemption refers to an "independent municipal power," which we conclude means any power other than home rule. There is no indication in the phrase "independent municipal power" that such a power must be in some way particularized or tailored; as long as there is a power granted by the legislature that is independent from home rule power, that is enough. We take the view that as long as a municipality can point to a power that the legislature has delegated to it, and the regulation of the civil relationship is reasonably incident to, and clearly authorized by that power, the exemption can apply. Id. at 1161. Additionally, the Court concluded there should be two prerequisites to a municipality's regulation of a civil relationship: Where a municipality has been given powers by the legislature to deal with the challenges it faces, those may be sufficiently independent municipal powers to allow regulation of a civil relationship as long as (1) the regulation of the civil relationship is reasonably "incident to" a public purpose that is clearly within the delegated power, and (2) the law in question does not implicate serious concerns about non-uniformity in the law. Id. at 1161. The Court then applied its reasoning to the municipal minimum wage ordinance at hand. First, the Court found that New Mexico statutes giving municipalities the power to provide for the general welfare of their residents, the police power to generally protect the property of its municipality and its residents, and the police power to preserve peace and order within the municipality, were independent municipal powers for the purposes of the private law exception—that is, independent from the home rule amendment. Id. at 1162. The Court also found that the minimum wage ordinance was reasonably incident to the public purpose clearly within that delegated power. The Court then went on to find that the minimum wage ordinance did not seriously implicate concerns about non-uniformity. Here, the Court focused on the limited applicability of the ordinance—it only applied to employers who were registered or licensed in the city, as opposed to for labor provided in the city. Id. at 1164. The Court also emphasized that the nature of the ordinance and the circumstances of the case were crucial to its finding. Given the fact that interpretation of the private law exception would be a matter of first impression for an Iowa Appellate Court, it is not possible to determine whether the Court would adopt the reasoning of the Massachusetts Supreme Court, the New Mexico Court of Appeals, or something different. It appears safe to assume that a local minimum wage ordinance would be considered a private or civil law governing civil relationships. Beyond that, the crucial issue likely would be whether such an ordinance was considered incident to some independent county power. The most obvious "independent power" to rely upon would be the County's police and general welfare powers. If the Court adopted the reasoning of the New Mexico case, such an ordinance may be found constitutional. Another potential "independent power" is found in Iowa JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON • P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 Code Section 331.301(6), which prohibits counties from adopting lower standards than the state but allows counties to adopt higher standards than the state. This subsection gives an Iowa county the independent power to adopt higher standards and a minimum wage ordinance is simply incident to this power. CONCLUSION It would seem there is a good case to be made that a local minimum wage ordinance is not preempted by Iowa's state minimum wage ordinance under the express, implied conflict or implied field preemption doctrines. Moreover, a local minimum wage ordinance should survive the private law exception to home rule if, despite the fact that it is a private or civil law governing civil relationships, it is adopted incident to one or more independent county powers— namely the ability to adopt higher standards than the state's and the County's police power. JOHNSON COUNTY COURTHOUSE ♦ 417 SOUTH CLINTON ♦ P.O. BOX 2450 ♦ IOWA CITY, IA 52240 PHONE (319) 339-6100 ♦ FAX (319) 339-6149 ORDINANCE 09-10-15-01 AN ORDINANCE ESTABLISHING A JOHNSON COUNTY MN MUM WAGE Whereas, the Iowa Constitution grants counties home rule power and authority to determine their local affairs and government; and Whereas, Iowa law allows counties to enact private or civil laws governing civil relationships when done incident to an exercise of an independent county power; and Whereas, Iowa law grants counties independent powers to protect and preserve the rights, privileges, and property of the county or of its residents; to preserve and improve the peace, safety, health, welfare, comfort and convenience of its residents; and to set standards and requirements which are higher and more stringent than those imposed by state law; and Whereas, Johnson County, Iowa has one of the highest costs of living in the state; and Whereas, many working families and individuals in Johnson County are unable to adequately sustain themselves due to wages below the cost of living in the county; and Whereas, payment of a higher minimum wage advances Johnson County's interests by creating jobs that better help workers and their families avoid poverty and economic hardship, reducing residents' reliance upon public and private aid, and better enabling residents to meet basic needs; and Whereas, increasing the minimum wage increases consumer purchasing power, increases workers' standards of living, reduces poverty, and stimulates the economy; and Whereas, a higher minimum wage will improve the peace, safety, health, welfare, comfort and convenience of Johnson County residents by raising their standard of living and other associated benefits. Now, Therefore, Be It Ordained By The Johnson County Board Of Supervisors, as follows: SECTION I. Purpose. The purpose of this ordinance shall be to establish a minimum hourly wage applicable to certain employees and employers within the geographical boundaries of Johnson County, Iowa. SECTION II. Authority, This ordinance is adopted pursuant to Johnson County's home rule authority as set out in Article III, Section 39A of the Iowa Constitution, and consistent with the County's independent police powers and its ability to adopt standards that exceed the standards set forth by the State, both as set out in Iowa Code §331.301. SECTION III. Applicability Within Johnson County Municipalities. This ordinance shall be applicable within the unincorporated areas of Johnson County, Iowa, and within any Johnson County municipality that has not adopted a conflicting ordinance. SECTION N. The Johnson County Minimum Wage Ordinance. Chapter 4 of the Johnson County Code of Ordinances is hereby amended to add a new subchapter 4:7, to be numbered and read as follows: Chapter 4:7 MINIMUM WAGE 4:7.1 Minimum Wage Requirements (a) The Johnson County hourly wage shall be at least $8.20 as of November 1, 2015, $9.15 as of May 1, 2016, and $10.10 as of January 1, 2017. Beginning on July 1, 2018, and each July 1st thereafter, the Johnson County hourly wage shall be increased by an amount corresponding to the previous calendar year's increase (i.e., January 1, 2017 through December 31, 2017), if any, in the Consumer Price Index for the Midwest region as published by the Bureau of Labor Statistics, U.S. Department of Labor or its successor index. The adjusted Johnson County hourly wage shall be announced by the Board of Supervisors by April 1 of each year. (b) Every employer, as defined in the federal Fair Labor Standards Act of 1938, as amended to January 1, 2007, shall pay to each of the employer's employees, as defined in the federal Fair Labor Standards Act of 1938, as amended to January 1, 2007, the Johnson County hourly wage stated in paragraph "a", the current state hourly wage, pursuant to Iowa Code §91D.1, as amended, or the. current federal minimum wage, pursuant to 29 U.S.C. §206, as amended, whichever is greater. (c) For purposes of determining whether an employee of a restaurant, hotel, motel, inn or cabin, who customarily and regularly receives more than thirty dollars a month in tips is receiving the minimum hourly wage rate prescribed in this section, the amount paid the employee by the employer shall be deemed to be increased on account of the tips by an amount determined by the employer, not to exceed forty percent of the applicable minimum wage. (d) An employer is not required to pay an employee the applicable Johnson County hourly wage provided in paragraph "a" until the employee has completed ninety calendar days of employment with the employer. An employee who has completed ninety calendar days of employment with the employer prior to November 1, 2015, May 1, 2016, or January 1, 2017, shall earn the applicable Johnson County hourly minimum wage as of that date. An employer shall pay an employee who has not completed ninety calendar days of employment with the employer an hourly wage of at least $6.35. (e) Employees are covered by this ordinance for each hour worked within the geographic boundaries of Johnson County or one of the municipalities located therein, provided that an employee who performs work in the geographic boundaries of Johnson County or one of the municipalities located therein on an occasional basis is covered by this ordinance in a two-week period only if the employee performs more than two hours of work within Johnson County or an applicable municipality during that two-week period. 4:7.2 Exceptions. The exemptions from the minimum wage requirements stated in Iowa Code §9ID. 1(2) shall apply to this ordinance. 4:7.3 Enforcement of Violations. Any violation of this ordinance shall be considered a county infraction, punishable as provided by Iowa Code Section 331.307. Additionally, this ordinance may be enforced pursuant to Iowa Code Chapter 91A. 4:7.4 Applicability. Notwithstanding the above, this ordinance shall not be applicable within the geographic boundaries of any Johnson County municipality that has adopted a conflicting ordinance, or to work performed by employees within said Johnson County municipality. SECTION V. Repealer. All other ordinances or parts of ordinances in conflict with the provisions of this ordinance are hereby repealed. SECTION VI. Savings Clause. If any section, provision, or part of this ordinance shall be adjudged invalid, illegal or unconstitutional, such adjudication shall not affect the validity of the ordinance as a whole or any section, provision or part thereof not be adjudged invalid, illegal or unconstitutional. SECTION V. Effective Date. This ordinance shall be in effect on the later of November 1, 2015, or after its final passage and publication as part of the proceedings of the Board of Supervisors. 4it Harney, Chairperson Board of Supervisors ATTEST: Travis Weipert, Auditor Johnson County, Iowa City of Iowa City MEMORANDUM Date: October 1, 2015 To: City Council From: Eleanor M. Dilkes, City Attorney Re: Johnson County Minimum Wage Ordinance — Exemptions and Special Certificates Introduction The Council has asked that I provide an overview of the exemptions from the County's minimum wage ordinance. This memo will review the exemptions as well as "special minimum wages" a/k/a "sub -minimum wages" that may be paid to certain classes of workers upon receipt of the applicable certificate from the United States Department of Labor (DOL). Currently, the State minimum wage is $7.25 as it is under federal law. The county ordinance sets a minimum wage of $8.20 as of November 1, 2015, $9.15 as of May 1, 2016 and $10.10 as of January 1, 2017. Beginning July 1, 2018 the ordinance provides for an annual increase, if any, based on the Consumer Price Index for the Midwest region for the previous calendar year's increase with the adjustment to be announced by the Board of Supervisors by April 1 of each year. Any employee who performs more than 2 hours of work within the county during a two-week period is covered by the ordinance. The county ordinance incorporates the exceptions to the State's minimum wage, which are set forth in Section 91D.1(2) of the Iowa Code. The Iowa Code, in turn, adopts the exceptions included in the federal Fair Labor Standards Act (FLSA) at 29 U.S.C. Section 213 with some modifications. This memo merely provides a summary of the exceptions for Council's information. Any employer, employee or other interested person who has questions about the minimum wage laws and the interplay between the Johnson County ordinance and state and federal law should seek independent legal advice from their attorney. Information is also available from the Wage and Hour Division of the U.S. Department of Labor (www.dol.gov/whd) and the Iowa Division of Labor (www.iowadivisionoflabor.gov) Gross Sales Threshold/Named Enterprises The Iowa law, and thereby the County ordinance, applies to employers that gross at least $300,000 in sales or business each year although some types of employers or "named enterprises" are covered without regard to business volume. Those enterprises are defined in Section 91 D.1(2)(c) of the Iowa Code as follows: 2(c) The minimum wage requirements set forth in this section shall apply to the following without regard to gross volume of sales or business done: (1) An enterprise engaged in the business of laundering, cleaning, or repairing clothing or fabrics. (2) An enterprise engaged in construction or reconstruction. (3) An enterprise engaged in the operation of a hospital; an institution primarily engaged in the care of the sick, the aged, or the mentally ill or persons who have symptoms of mental illness who reside on the premises of such institution; a school for persons with mental or physical disabilities or for gifted children; a preschool, elementary or secondary school; or an institution of higher education. This subparagraph applies regardless of whether any such October 1, 2015 Page 2 described hospital, institution, or school is public or private or operated for profit or not for profit. (4) A public agency. 3. The labor commissioner shall adopt rules to implement and administer this section. Iowa Code Section 91 D.1(2)(c)(2015). First 90 days of Employment The County ordinance tracks the lower minimum wage in the State Code for the first 90 days of employment, which is currently $6.35. The ordinance states that this lower wage applies during the first 90 days of employment, not the first 90 days that the ordinance is in effect. Exemptions/SDecial Minimum Wage Certificates State law adopts the federal law exceptions to the minimum wage. I have attached a copy of the Chapter of the Iowa Administrative Code (IAC) that addresses the scope and coverage of the minimum wage. The exceptions are found at 875 IAC 215.4(91 D) entitled "Exceptions". These exceptions exempt certain workers from the minimum wage requirements entirely, including: bona fide executive, administrative or professional employees; certain amusement or recreational establishment, organized camp, or religious or non-profit education center employees; newspaper employees of limited circulation newspapers; switchboard operators; babysitters on a casual basis; and, companions for the elderly. In addition to the complete exemption of certain employees from the minimum wage requirements, the State law also excepts any employee that is exempted from the minimum wage requirements under the federal special minimum wage certificates. Section 14 of the FLSA (29 U.S.C. Section 214) authorizes employers, after receiving a certificate from the Wage and Hour Division in accordance with its regulations (a "sub - minimum wage certificate"), to pay "special minimum wages" (wages less than the minimum wage) to certain types of employees including: student learners (a program for high school students at least 16 years old who are enrolled in vocational rehabilitation (shop courses)); full time students with limited hours employed in retail or service establishments, agriculture or institutions of higher education; and, workers whose earning or productive capacities are impaired by mental or physical disability. Each of these special certificate programs has extensive regulations associated with it. The full time student program certificate allows the student to be paid not less than 85% of the minimum wage with certain daily and weekly hourly restrictions. The Workers with Disabilities certificate allows for the payment of a commensurate wage rate as determined by the Wage and Hour Division, which must be reviewed at periodic intervals. I have attached the Wage and Hour Division's Fact Sheet #39 (the Employment of Workers With Disabilities at Special Minimum Wages). The special minimum age must be a "commensurate" wage rate, i.e. in proportion to the wage received by experienced workers who don't have disabilities performing essentially the same type of work in the geographic area from which the labor force of the community is drawn. For example, if a disabled worker is 75% as productive as a non -disabled worker, the commensurate wage (special minimum wage) would be set at 75% of the wage paid to the non -disabled worker in the same labor pool. I am not an expert in this area and suggest that social service agencies that provide supported employment for disabled workers be consulted to determine what impact they expect the county ordinance to have. I speculate, however, that because the wage paid must be a wage that is commensurate to wages paid in the October 1, 2015 Page 3 geographic area from which labor is drawn, that as the wage of the non -disabled worker in the community increases so must the special minimum wage for disabled workers. Tip credit Under Iowa law employees who customarily make more than $30 per month in tips get a "tip credit" on the minimum wage such that the amount of wage paid by the employer is increased on account of the tips by an amount not to exceed 40% of the applicable minimum wage. In other words, the lowest wage that can be paid is 60% of the minimum wage (In Iowa $4.35 (60% of $7.25 minimum wage). If in any work week the wage and tips do not average at least the minimum wage the employer must make up the difference. The County ordinance mirrors this provision, so the minimum tip wage under the county ordinance would be $4.92 as of November 1, 2015 (60% of $8.20), $5.49 as of May 1, 2016 (60% of $9.15) and $6.06 as of January 1, 2017 (60% of $10.10). Cc: Tom Markus, City Manager Geoff Fruin, Assistant City Manager Marian Karr, City Clerk IAC 7/2/08 Labor Services[875] Ch 2151 p• MINIMUM WAGE CHAPTER 215 MINIMUM WAGE SCOPE AND COVERAGE [Prior to 10/21/98, see 347—Ch 2151 875-215.1(91D) Requirement to pay. 215.1(1) Every employer shall pay to each of the employer's employees performing work in this state wages of not less than the applicable minimum hourly wage set forth in Iowa Code section 91 D.1 as amended by 2007 Iowa Acts, House File 1, unless otherwise noted in 875 --Chapters 215 through 220. 215.1(2) Rescinded IAB 12/12/01, effective 1/16/02. 215.1(3) Rescinded IAB 11/23/94, effective 1/1/95. 875-215.2(91D) Initial employment wage rate. 215.2(1) The 90 -calendar -day period set forth in Iowa Code section 9113.1(1) "d" as amended by 2007 Iowa Acts, House File 1, is counted from the employee's initial day of work. 215.2(2) If the state minimum initial employment wage rate changes during the 90 -calendar -day period, the employer shall pay the new effective rate. 215.2(3) If, after less than 90 calendar days from the initial day of work, the employee's employment is terminated and the employee is rehired by the same employer within three years of the initial hiring, the initial employment wage rate in effect at rehiring may be paid until the 90 -calendar -day employment period is reached. If, after 90 calendar days from the initial day of work, the employee's employment is terminated and the employee is rehired in less than three years from the last date of employment, the employee shall not be employed at the initial employment wage rate. 215.2(4) Rescinded IAB 8/29/07, effective 10/3/07. 875-215.3(91D) Definitions. As used in 875 --Chapters 216 to 220: 215.3(1) `Agriculture" includes farming in all its branches and among other things includes the cultivation and tillage of the soil; dairying; the production, cultivation, growing, and harvesting of any agricultural or horticultural commodities (including commodities defined as agricultural commodities in Section 15(g) of the Agricultural Marketing Act, as amended); the raising of livestock, bees, forbearing animals, or poultry; and any practices (including any forestry or lumbering operations) performed by a farmer or on a farm incident to or in conjunction with farming operations, including preparation for market, delivery to storage or to market or to carriers for transportation to market. 215.3(2) "American vessel" includes any vessel which is documented or numbered under the laws of the United States. 215.3(3) "Commissioner" means the labor commissioner or the commissioner's designee. 215.3(4) "Commerce " means trade, commerce, transportation, transmission, or communication among the several states or between any state and any place outside thereof. 215.3(5) "Elementary school" means a day or residential school which provides elementary education, as determined under state law. 215.3(6) "Employ" includes to suffer or permit to work. 215.3(7) "Employee " means any individual employed by an employer. In the case of an individual employed by a public agency, the term means any individual employed by the state, political subdivision of the state, or an interstate governmental agency, other than the individual: a. Who is not subject to the civil service laws of the state, political subdivision, or agency which employs the individual; and b. Who (1) Holds a public elective office of that state, political subdivision, or agency, (2) Is selected by the holder of the office to be a member of the holder's personal staff, (3) Is appointed by the officeholder to serve on a policy-making level, Ch 215, p.2 Labor Services[875] IAC 7/2/08 (4) Is an immediate adviser to the officeholder with respect to the constitutional or legal powers of the office, or (5) Is an employee in the legislative branch or legislative body of that state, political subdivision, or agency and is not employed by the legislative library of the state, political subdivision, or agency. 215.3(8) "Employee " does not mean: a. For purposes of the definition of "Person -day," any individual employed by an employer engaged in agriculture if the individual is the parent, spouse, child, or other member of the employer's immediate family. b. Any individual who volunteers to perform services for a public agency which is the state, a political subdivision of the state, or an interstate government agency, if: (1) The individual receives no compensation or is paid expenses, reasonable benefits, or a nominal fee to perform the services for which the individual volunteered; and (2) The services are not the same type of services which the individual is employed to perform for the public agency. However, an employee of a public agency which is the state, political subdivision of the state, or an interstate governmental agency may volunteer to perform services for any other state, political subdivision, or interstate governmental agency, including a state, political subdivision or agency with which the employing state, political subdivision, or agency has a mutual aid agreement. 215.3(9) "Employer " includes any person acting directly or indirectly in the interest of an employer in relation to an employee and includes a public agency, but does not include any labor organization (other than when acting as an employer) or anyone acting in the capacity of officer or agent of the labor organization. 215.3(10) "Enterprise" means the related activities performed (either through unified operation or common control) by any person or persons for a common business purpose, and includes all activities whether performed in one or more establishments or by one or more corporate or other organizational units including departments of an establishment operated through leasing arrangements. Enterprise shall not include the related activities performed for the enterprise by an independent contractor, provided that, within the meaning of this definition, a retail or service establishment which is under independent ownership shall not be deemed to be so operated or controlled as to be other than a separate and distinct enterprise by reason of any arrangement, which includes, but is not necessarily limited to, an agreement: a. That it will sell, or sell only, certain goods specified by a particular manufacturer, distributor, or advertiser; b. That it will join with other establishments in the same industry for the purpose of collective purchasing; or C. That it will have the exclusive right to sell the goods or use the brand name of a manufacturer, distributor, or advertiser within a specified area, or by reason of the fact that it occupies premises leased to it by a person who also leases premises to other retail or service establishments. For purposes of this definition, the following activities performed by any person or persons shall be deemed to be those activities performed for a business purpose: (1) In connection with the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or deficient who reside on the premises of the institution; a school for mentally or physically handicapped or gifted children; a day-care, preschool, elementary or secondary school; or an institution of higher education (regardless of whether the hospital, institution, or school is public or private or operated for profit or not for profit); (2) In connection with the operation of a street, suburban or interurban electric railway, or local trolley or motorbus carrier, if the rates and services of the railway or carrier are subject to regulation by a state or local agency (regardless of whether the railway or carrier is public or private or operated for profit or not for profit); or (3) In connection with the activities of a public agency. 215.3(11) "Enterprise engaged in commerce or in the production of goods for commerce" means an enterprise which has employees engaged in commerce or in the production of goods for commerce, IAC 7/2/08 Labor Services[875] Ch 215, p.3 or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce by any person, and which: a. Is an enterprise, other than an enterprise which is comprised exclusively of retail or service establishments and which is described in 215.3(11) "b, " whose annual gross volume of sales made or business done (exclusive of excise taxes at the retail level which are separately stated) is not less than $250,000; b. Is an enterprise whose annual gross volume of sales made or business done (exclusive of excise taxes at the retail level which are separately stated) is not less than $300,000; C. Is, without regard to gross volume of sales or business done, engaged in laundering, cleaning, or repairing clothing or fabrics; d. Is, without regard to gross volume of sales or business done, engaged in the business of construction or reconstruction, or both; e. Is engaged in the operation of a hospital, an institution primarily engaged in the care of the sick, the aged, the mentally ill or deficient who reside on the premises of the institution; a school for mentally or physically handicapped or gifted children; a day-care, preschool, elementary or secondary school; or an institution of higher education (regardless of whether the hospital, institution, or school is public or private or operated for profit or not for profit); or f. Is an activity of a public agency. Any establishment which has as its only regular employees the owner thereof or the parent, spouse, child, or other member of the immediate family of the owner shall not be considered to be an enterprise engaged in commerce or in the production of goods for commerce or a part of an enterprise, and the sales of the establishments shall not be included for the purpose of determining the annual gross volume of sales of any enterprise for the purpose of 215.3(11). The employees of an enterprise which is a public agency shall for purpose of this definition be deemed to be employees engaged in commerce, or in the production of goods for commerce, or employees handling, selling, or otherwise working on goods or materials that have been moved in or produced for commerce. 215.3(12) "Goods " means goods (including ships and marine equipment), wares, products, commodities, merchandise or articles or subjects of commerce of any character, or any part or ingredient thereof, but does not include goods after their delivery into the actual physical possession of the ultimate consumer thereof other than a producer, manufacturer, or processor thereof. 215.3(13) "Hours worked. " In determining, for the purpose of the minimum wage, the hours for which an employee is employed, there shall be excluded any time spent in changing clothes or washing at the beginning or end of each workday which was excluded from measured working time during the week involved by the express terms of or by custom or practice under a bona fide collective bargaining agreement applicable to the particular employee. In determining the total hours worked, the employer must include all time the employee is required to be on the premises or on duty (and not completely relieved of all job duties during a meal or sleep period) and all the time the employee is suffered or permitted to work. 215.3(14) "Industry " means a trade, business, industry, or other activity, or branch or group thereof, in which individuals are gainfully employed. 215.3(15) "Person" means an individual, partnership, association, corporation, business trust, legal representative, or any organized group of persons. 215.3(16) "Person -day" means any day during which an employee performs any agricultural labor for not less than one hour. 215.3(17) "Produced" means produced, manufactured, mined, handled, or in any other manner worked on in any state; and an employee shall be deemed to have been engaged in the production of goods if the employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on the goods, or in any closely related process or occupation directly essential to the production thereof, in any state. 215.3(18) "Public agency " means the government of the state of Iowa, its various departments and agencies, and any political subdivision of the state. Ch 215, p.4 Labor Services[875] IAC 7/2/08 215.3(19) "Resale" shall not include the sale of goods to be used in residential or farm building construction, repair, or maintenance, provided that the sale is recognized as a bona fide retail sale in the industry. 215.3(20) "Sale" or "sell" includes any sale, exchange, contract to sell, consignment for sale, shipment for sale, or other disposition. 215.3(21) "Secondary school" means a day or residential school which provides secondary education, as determined under state law. 215.3(22) "Tipped employee" means any employee engaged in an occupation in which the employee customarily received more than $30 a month in tips. 215.3(23) "Wage" paid to any employee includes the reasonable cost, as determined by the labor commissioner, to the employer of furnishing the employee with board, lodging, or other facilities, if the board, lodging, or other facilities are customarily furnished by the employer to the employees, provided that the cost of board, lodging or other facilities shall not be included as a part of the wage paid to any employee to the extent it is excluded therefrom under the terms of a bona fide collective bargaining agreement applicable to the particular employee, provided further, that the commissioner is authorized to determine the fair value of the board, lodging, or other facilities for defined classes of employees and in defined areas, based on average cost to the employer or to groups of employers similarly situated, or average value to groups of employees, or other appropriate measures of fair value. The evaluations, where applicable and pertinent, shall be used in lieu of actual measure of cost in determining the wage paid to any employee. In determining the wage of a tipped employee, the amount paid the employee by the employer shall be deemed to be increased on account of tips by an amount determined by the employer, but not by an amount in excess of 40 percent of the applicable minimum wage rate, except that the amount of the increase on account of tips determined by the employer may not exceed the value of tips actually received by the employee. The previous sentence shall not apply with respect to any tipped employee unless: a. The employee has been informed by the employer of the provisions of this definition, and b. All tips received by the employee have been retained by the employee, except that this definition shall not be construed to prohibit the pooling of tips among employees who customarily and regularly receive tips. SOURCE: 29 U.S.C. 203. 875-215.4(91D) Exceptions. The rules contained in 875—chapters 215 to 220 shall not apply with respect to: 215.4(1) Any employee employed in a bona fide executive, administrative, or professional capacity (including any employee employed in the capacity of academic administrative personnel or teacher in elementary or secondary schools), or in the capacity of outside salesperson (except that an employee of a retail or service establishment shall not be excluded from the definition of employee employed in a bona fide executive or administrative capacity because of the number of hours in employee's workweek which the employee devotes to activities not directly or closely related to the performance of executive or administrative activities, if less than 40 percent of the employee's hours worked in the workweek are devoted to the activities). 215.4(2) Any employee employed by a retail or service establishment (except an establishment or employee engaged in laundering, cleaning, or repairing clothing or fabrics or an establishment engaged in the operation of a hospital, institution, or school described and defined in 215.3(11) "e ") if more than 50, percent of the establishment's annual dollar volume of sales of goods or services is made within the state in which the establishment is located, and the establishment is not in an enterprise described and defined in 215.3(11). A "retail or service establishment" shall mean an establishment 75 percent of whose annual dollar volume of sales of goods or services (or of both) is not for resale and is recognized as retail sales or services in the particular industry. 215.4(3) Any employee employed by an establishment which is an amusement or recreational establishment, organized camp, or religious or nonprofit education conference center, if IAC 7/2/08 Labor Services[875] Ch 215, p.5 a. It does not operate for more than seven months in any calendar year, or b. During the preceding calendar year, its average receipts for any six months of such year were not more than 33 1/3 percent of its average receipts for the other six months of the year, except that the exemption provided does not apply with respect to any employee of a private entity engaged in providing services or facilities (other than a private entity engaged in providing services and facilities directly related to skiing) in a national park or a national forest or on land in the National Wildlife Refuge System, under a contract with the Secretary of the Interior or the Secretary of Agriculture. 215.4(4) Any employee employed by an establishment which qualifies as an exempt retail establishment under 215.4(2) and is recognized as a retail establishment in the particular industry notwithstanding that the establishment makes or processes at the retail establishment the goods that it sells, provided that more than 85 percent of the establishment's annual dollar volume of sales of goods so made or processed is made within the state in which the establishment is located. 215.4(5) Any employee employed in the catching, taking, propagating, harvesting, cultivating, or farming of any kind of fish, shellfish, crustacean, sponges, seaweeds, or other aquatic forms of animal and vegetable life, or the first processing, canning or packing such marine products at sea as an incident to, or in conjunction with, such fishing operations, including the going to and returning from work and loading and unloading when performed by any employee. 215.4(6) Any employee employed in agriculture: a. If the employee is employed by an employer who did not, during any calendar quarter during the preceding calendar year, use more than 500 person -days of agricultural labor; b. If the employee is the parent, spouse, child, or other member of the employer's immediate family; C. If the employee: 1. Is employed as a hand harvest laborer and is paid on a piece -rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece -rate basis in the region of employment, 2. Commutes daily from the employee's permanent residence to the farm on which the employee is employed, and 3. Has been employed in agriculture less than 13 weeks during the preceding calendar year; d. If the employee (other than an employee described in 215.4(6) "c "): 1. Is 16 years of age or under and is employed as a hand harvest laborer, is paid on a piece -rate basis in an operation which has been, and is customarily and generally recognized as having been, paid on a piece -rate basis in the region of employment, 2. Is employed on the same farm as the employee's parent or person standing in the place of the employee's parent, and 3. Is paid at the same piece rate as employees over age 16 are paid on the same farm; or e. If the employee is principally engaged in the range production of livestock. 215.4(7) Any employee to the extent that the employee is exempted by regulations, order, or certificate of the Secretary of Labor issued under the federal Fair Labor Standards Act, 29 U.S.C. 214. V.i O 1, 215.4(8) Any employee employed in connection with the publication of any weekly, semiweekly, �pO 144 or daily newspaper with a circulation of less than 4,000, having the major part of its circulation within ^GY%'1�7 t? C�1 the county where published or counties contiguous thereto. / 215.4(9) Reserved. 215.4(10) Any switchboard operator employed by an independently owned public telephone company which has not more than 750 stations. 215.4(11) Reserved. 215.4(12) Any employee employed as a stevedore on a vessel other than an American vessel. 215.4(13) Reserved. 215.4(14) Any employee employed on a casual basis in domestic service employment to provide babysitting services or any employee employed in domestic service employment to provide companionship services for individuals who (because of age or infirmity) are unable to care for themselves. Ch 215, p.6 Labor Services[875] IAC 7/2/08 215.4(15) Any enterprise whose annual gross volume of sales made or business done (exclusive of excise taxes at the retail level which are separately stated) falls below the applicable amount so stated in 215.3(11) which initially required compliance. Future compliance shall be determined following each succeeding quarter with the gross volume of sales made or business done (exclusive of excise taxes at the retail level which are separately stated) from the most recent four quarters being totaled to determine an annual gross. The gross amount initially requiring compliance shall continue in effect. SOURCE: 29 U.S.C. 213. 875-215.5(91D) Interpretative guidelines. The rules contained in 875—chapters 215 to 220 are based on the federal rules indicated at the end of each rule. The federal rules contained illustrative examples of the application of the rule. The examples are not adopted, but the commissioner will be guided in enforcement by the examples provided in the rules. The Secretary of Labor has adopted statements of general policy and interpretations not directly related to regulations at 29 CFR Parts 776, 779, 780, and 785. The commissioner will follow these statements and interpretations in the application and enforcement of Iowa Code chapter 91D. These rules are intended to implement Iowa Code chapter 91D. [Filed emergency 11/8/89 after Notice 9/6/89—published 11/29/89, effective 1/1/90] [Filed 11/2/94, Notice 6/22/94—published 11/23/94, effective 1/1/951 [Filed 11/20/01, Notice 6/13/01 published 12/12/01, effective 1/16/02] [Filed emergency 4/16/07published 5/9/07, effective 4/16/07] [Filed 7/31/07, Notice 5/23/07published 8/29/07, effective 10/3/07] U.S. Department of Labor MHO Wage and Hour Division U.S. Wage and Huur Misimi (Revised July 2008) Fact Sheet #39: The Employment of Workers with Disabilities at Special Minimum Wages This fact sheet provides general information concerning the application of section 14(c) of the Fair Labor Standards Act (FLSA). Characteristics Section 14(c) of the FLSA authorizes employers, after receiving a certificate from the Wage and Hour Division, to pay special minimum waves - wages less than the Federal minimum wave - to workers who have disabilities for the work being performed. The certificate also allows the payment of wages that are less than the prevailing wage to workers who have disabilities for the work being performed on contracts subject to the McNamara -O'Hara Service Contract Act (SCA) and the Walsh -Healey Public Contracts Act (PCA). A worker who has disabilities for the job being performed is one whose earning or productive capacity is impaired by a physical or mental disability, including those relating to age or injury. Disabilities which may affect productive capacity include blindness, mental illness, mental retardation, cerebral palsy, alcoholism and drug addiction. The following, taken by themselves, are not considered to be disabilities for purposes of paying special minimum wages: education disabilities, chronic unemployment, receipt of welfare benefits, nonattendance at school, juvenile delinquency, and correctional parole or probation. Section 14(c) does not apply unless the disability actually impairs the worker's earning or productive capacity for the work being performed. The fact that a worker may have a disability is not in and of itself sufficient to warrant the payment of a special minimum wage. Coverage Any person who works on or otherwise handles goods that are moving in interstate commerce is individually subject to the minimum wage and overtime requirements of the FLSA. In addition, employees of enterprises operated for a business purpose that have an annual dollar volume of sales or business done of at least $500,000 are also subject to the FLSA's requirements. Furthermore, employees of public agencies; hospitals; institutions primarily engaged, in the Act's own words, "in the care of the sick, the aged, or the mentally ill or defective who reside on the premises;" schools for children who have disabilities; or preschools, elementary or secondary schools, or institutions of higher education are covered on an enterprise basis regardless of the annual dollar volume of the employer. Requirements Certification Employers must obtain an authorizing certificate from the Wage and Hour Division prior to paying special minimum wages to employees who have disabilities for the work being performed. Employers shall submit a properly completed application (Form WH -226 -MIS, Application for Authority to Employ Workers with Disabilities at Special Minimum Wages.) and the required supporting documentation to: United States FS 39 Department of Labor, Employment Standards Administration, Wage and Hour Division, 230 South Dearborn Street, Room 514, Chicago, Illinois, 60604-1757; (312) 596-7195. Certificates covering employees of work centers and patient workers normally remain in effect for two years. Certificates covering workers with disabilities placed in competitive employment situations or School Work Exploration Programs (SWEPs) are issued annually. Commensurate Wage Rates Special minimum wages must be commensurate wage rates - based on the worker's individual productivity, no matter how limited, in proportion to the wage and productivity of experienced workers who do not have disabilities performing essentially the same type, quality, and quantity of work in the geographic area from which the labor force of the community is drawn. The key elements in determining commensurate rates are: Determining the standard for workers who do not have disabilities, the objective gauge against which the productivity of the worker with a disability is measured. Determining the prevailing wage, the wage paid to experienced workers who do not have disabilities for the same or similar work and who are performing such work in the area. Most SCA contracts include a wage determination specifying the prevailing wage rates to be paid for work on the SCA contract. Evaluating the quantity and quality of the productivity of the worker with the disability. All special minimum wages must be reviewed and adjusted, if appropriate, at periodic intervals. At a minimum, the productivity of hourly paid workers must be reevaluated every six months and a new prevailing wage survey must be conducted at least every twelve months. Overtime, Child Labor and Fringe Benefits Generally, workers subject to the FLSA, SCA, and/or PCA must be paid overtime at least 1 1/2 times their regular rate of pay for all hours worked over 40 in a workweek. Minors younger than 18 years of age must be employed in accordance with the youth employment provisions of the FLSA and PCA. Neither the FLSA nor PCA have provisions requiring the payment of fringe benefits. Workers paid special minimum wages, however, must receive the full fringe benefits listed on the wage determination when performing work subject to the SCA. Enforcement The Wage and Hour Division is responsible for the administration and enforcement of the FLSA. In addition, any worker with a disability paid at special minimum wages, or his/her parent or guardian, may petition the Administrator of the Wage and Hour Division for a review of their special wage rates by a Department of Labor Administrative Law Judge. Worker Notification Each worker with a disability and, where appropriate, the parent or guardian of such worker, shall be informed orally and in writing by the employer of the terms of the certificate under which such worker is employed. In addition, employers must display the Wage and Hour Division poster, Notice to Workers with Disabilities Paid at Special Minimum Wages (WH Publication 1284). Where to Obtain Additional Information For additional information, visit our Wage and Hour Division Website: http://www.wagehour.dol.gov and/or call our toll-free information and helpline, available 8 a.m. to 5 p.m. in your time zone, 1-866- 4USWAGE (1-866-487-9243). This publication is for general information and is not to be considered in the same light as official statements of position contained in the regulations. U.S. Department of Labor 1-866-4-USWAGE Frances Perkins Building TTY: 1-866-487-9243 200 Constitution Avenue, NW Contact Us Washington, DC 20210 Julie Voparil From: Eleanor M. Dilkes Sent: Tuesday, October 06, 2015 2:02 PM To: Julie Voparil Cc: Tom Markus Subject: FW: Position Statement Attachments: Position Statement to Board.pdf Julie - The attached is to be handed out tonight in connection with the work session discussion on minimum wage. Eleanor M. Dilkes City Attorney City of Iowa City 410 E. Washington St. Iowa City, IA 52240 Email: eleanor-dilkes@iowa-city.org Phone: (319) 356-5030 Fax: (319) 356-5008 -----Original Message ----- From: Ron Schieffer[mailto:r.schieffer@reachforyourpotential.org) Sent: Tuesday, October 06, 201511:40 AM To: Eleanor M. Dilkes Subject: Fwd: Position Statement Hello, I appreciate you meeting with us today. Attached is the position letter that we sent to the Johnson County Board of Supervisors in August. Thanks. Ron Ron Schieffer Executive Director Reach for Your Potential, Inc. 1705 S 1st Ave Suite I Iowa City, IA 52240 (319) 354-2983 (ph) (319) 354-3221 (fax) CONFIDENTIALITY NOTICE: This e-mail and any files transmitted with it are confidential and are intended solely for the use of the individual or entity to which they are addressed. This communication may contain material protected by the State of Iowa and Federal confidentiality laws. If you are not the intended recipient or the person responsible for delivering the e-mail to the intended recipient, be advised that you have received this e-mail in error and that any use, dissemination, forwarding, printing, or copying of this e-mail is strictly prohibited. If you have received this e-mail in error, please delete the message and attachments and notify the sender immediately. Statement of Position on Minimum Wage Proposal in Johnson County August 12, 2015 Background: For decades, Johnson County has been know as a'magnet county' for people with disabilities and mental health needs due to vast resources, quality providers of services, and a workforce to sustain the need. Johnson County providers are willing to serve our states most behaviorally and medically challenged individualized in community based settings. Our county should be proud of our rich service tradition and dedication to improve lives of our most vulnerable citizens. The number of Direct Support Professionals (DSP's) across the county who serve people with disabilities is significant. Agencies employ thousands of caregivers who bring with them diverse backgrounds and experiences. Hundreds of college students seek out these positions to gain experience in their field of study. Some residents take on paid sleep positions to supplement their professional income. A conservative estimate suggests employees of these agencies are paid over 50 million dollars in wages and benefits which is redistributed into the businesses in the communities of Johnson County. The significant economic engine that is non-profit organizations in the county should be recognized. Minimum Wage Ordinance: The timeframe of the proposed Johnson County ordinance is to increase the minimum wage to $10.10 per hour by 2017. This proposal was introduced and is "on a fast track for approval due to the concern from supervisors that the state will not act in a way that protects the needs of minimum wage workers. No clear data has been put forth by Supervisor's that identify the number of employers in Johnson County starting at minimum wage. Assumptions can be made that raising the minimum to $10.10 per hour will cause "wage compression" which is the narrowing of the pay differentials between employees in the same job or pay grade or between employees in adjacent pay grades. The impact of wage compression, while hard to measure, should not be underestimated and is the deeper issue of concern to area non -profits. Proposal: Providers of services to people with disabilities in Johnson County are not opposed to paying higher wages. However, the ability to correspondingly increase service rates established by the state of Iowa and Medicaid funding is limited. Iowa Medicaid has made it clear that cost containment strategies imposed by the Iowa Legislature and the Governor will be enforced and exceptions to capped rates will not be approved. Individuals with disabilities who have the most significant behavioral challenges -and the highest individualized service rates -will inevitably be pushed over the cost limit due to wage compression. Providers will be put in a position of deciding if lower staffing ratios or even day/supported employment programming services will need to be cut. Some individuals with disabilities may be forced to move out of Johnson County. The following Johnson County providers request the Board of Supervisors reconsider the aggressive timeframe of the minimum wage ordinance. A committee, that includes representation from a Johnson County provider of service to people with disabilities, should be established to clearly understand and identify the implications of a mandated increase. Supervisors should take into account the committee recommendations before voting on any measure that may have unintended negative consequences to the most vulnerable citizens of our community: Systems Unlimited Inc. -Iowa City Reach for Your Potential -Iowa City Mayors Youth Empowerment Program (MYEP)-Iowa City The Arc of Southeast Iowa -Iowa City Caring Hands and More -Iowa City Successful Living -Iowa City 10-01-1 It CITY CITY OF IOWA CITY 1P5 Mal MEMORANDUM Date: October 1, 2015 To: Mayor and City Council From: Marian K. Karr, City Clerk TO Re: Joint Meeting Agenda Items for October 19 The next joint meeting with City Councils of Johnson County municipalities, the Johnson County Board of Supervisors, the Iowa City School District and neighboring school districts will be held on Monday, October 19, 2015. The meeting will be hosted by the Iowa City School District. Please come prepared to discuss agenda items you would like to include on that agenda at the next Council work session. A complete agenda and meeting date confirmation will be available in your packet preceding the joint meeting. �M� ;=ILL CITY OF IOWA CITY UNESCO CITY OF LITERATURE PENDING CITY COUNCIL WORK SESSION TOPICS September 28, 2015 Pendine Topics to be Scheduled I . Discuss city related marijuana policies and potential legislative advocacy positions 2. Review of the Sensitive Areas ordinance 3. Discuss formation of staff /citizen climate adaptation advisory group 4. Discuss transit route planning framework 5. Review University of Iowa enrollment and housing projections 6. Review sale of alcohol to minors regulations 7. Review sidewalk repair program 8. Downtown streetscape project update From Council Member Botchway IP7 Stop Street Harassment i� A variety of forms of street harassment are illegal in Iowa, including verbal harassment, up -skirt photos, indecent exposure, following, groping, and KNOW hate crimes. Here are the laws and reporting procedures you need to know. Verbal Harassment Y 0 U R In Iowa, there are four laws that prohibit some forms of verbal street harassment. o. RinUTQ Assault STREET HARASSMENT Title XVI, Subtitle 1, Chap. 708 §708.1 AND THE LAW Iowa's assault statute protects you against injurious or offensive physical contact—covered under groping—as well as the threat of injurious or BMSTREET STREET offensive physical contact If a street harasser takes any action that is either intended to cause you pain, injury, or offensive physical contact, or that is intended to cause you fear of pain, injury, or offensive physical contact, and you think that s/he is in fact able to touch you or hurt you, you can report the harasser for assault in Iowa. Such threatening actions might include verbal threats, following you, or other actions. If you believe that someone is following you or will attempt to hurt you, you can call 911 as soon as you are safe to do so. Penalty: An assault that does not result in injury is a simple misdemeanor, punishable by a fine of between $65 and $625 and/or up to 30 days in jail. Assault with intent to commit sexual abuse — meaning that the harasser intended to have sexual contact with you or commit a sex act without your consent — is an aggravated misdemeanor, punishable by a fine of between $625 and $6,250 and/or up to 2 years in prison. An assault that does result in some bodily injury to you can range from an aggravated misdemeanor to a class C felony, with penalties as high as a fine of $10,000 and/or 30 years in prison. Disorderly Conduct Title XVI, Subtitle 1, Chap. 723 §723.4 In Iowa, it's illegal to: • Engage in any fighting or violent behavior in public. • Obstruct any sidewalk, street, or other public way in order to prevent its lawful use by others. • Direct abusive epithets against someone (say abusive or insulting things about the person) or make any threatening gesture to the person that is likely to cause a violent reaction. If a street harasser insults you, uses abusive language to or about you, does anything that indicates s/he may become violent, or obstructs your path on the sidewalk, you can report him/her. Note: The "likely to cause a violent reaction" part makes it a "fighting words" law. Since street harassment rarely results in the harassed person fighting back, these laws usually have not been Know Your Rights: Street Harassment and the Law 11 Stop Street Harassment used to address street harassment. But you can still try using it, and if enough people make a case for why it should be used, then it might be applied more often. Penalty: Disorderly conduct is a simple misdemeanor in Iowa, punishable by a fine of between $65 and $625 and/or up to 30 days in jail. Harassment Title XVI, Subtitle 1, Chap. 708 §708.7 Iowa law prohibits an encounter "in which two or more people are in visual or physical proximity to each other" and one person, "purposefully and without legitimate purpose," intentionally threatens, intimidates, or alarms the other person. A threatening, intimidating, or alarming action could include: • Verbal harassment o Insults o Obscene or explicit language o Racial, homophobic, ortransphobic slurs • Other nonverbal actions such as following you or obstructing pathways. If a street harasser does something that is clearly threatening, intimidating, or alarming, you can report him/her. Penalty: Harassment in the third degree is a simple misdemeanor, punishable by a fine of between $65 and $625 and/or up to 30 days in jail. Prostitution Title XVI, Subtitle 1, Chap. 725 §725.1 Offering to pay someone for prostitution is illegal in Iowa. If a street harasser solicits sexual activity from you, you can report him/her. You can also make the case that harassers who yell, "How much?I" or offer you money, or anything else, for sex, even in jest, are soliciting prostitution. Stop Street Harassment doesn't oppose consensual sex work, but we do think it's inappropriate for a street harasser to make assumptions about your sexual availability and make you feel uncomfortable. Penalty: Prostitution is an aggravated misdemeanor in Iowa, punishable by a fine of between $625 and $6,250 and/or up to 2 years in prison. Invasion of Privacy — Nudity Title XVI, Subtitle 1, Chap. 709 § 709.21 In Iowa, it is illegal for someone to photograph or film a non -consenting person if that person is fully or partially nude and has a reasonable expectation of privacy. Know Your Rights: Street Harassment and the law 12 Stop Street Harassment If a harasser films or photographs you while you are in a public restroom, dressing room, locker room, hotel room, or a similar location, you can report him/her. Penalty: Invasion of privacy—nudity is a serious misdemeanor, punishable by a fine of between $315 and $1,875 and/or up to 1 year in jail. Indecent Exposure Title XVI, Subtitle 1, Chap. 709 §709.9 It is illegal in Iowa for anyone to expose his or her genitals for the purpose of arousing or satisfying sexual desires when that person knows that his or her act will be offensive to the viewer. If a street harasser intentionally flashes or exposes his or her genitals to you in public, such as on public transportation, in a public park, or in any other public place, you can report him/her. Penalty: Indecent exposure is a serious misdemeanor in Iowa, punishable by a fine of between $315 and $1,875 and/or up to 1 year in jail. Follomdne If you think someone is following you, you can call 911 right away, the first time it happens. You do not have to wait for that person to commit a crime. Stalking Title XVI, Subtitle 1, Chap. 708 §708.11 Stalking is illegal in Iowa. The actions that constitute stalking in Iowa are similar to those that constitute harassment, but the harassment must be repeated and intentional, must cause you fear of bodily injury (or injury to a member of your family), and must be something that the harasser knows or should reasonably know will cause you such fear. If the same person, on more than one occasion, follows you or harasses you and you feel threatened and unsafe, you can report that person. Penalty: Stalking is an aggravated misdemeanor, punishable by a fine of between $625 and $6,250 and/or up to 2 years in prison. Assault Title XVI, Subtitle 1, Chao. 708 §708.1 Iowa's assault statute outlaws any physical contact that is insulting or offensive. Know Your Rights: Street Harassment and the Law 13 Stop Street Harassment If a street harasser does touch you in an offensive way —such as grabbing or touching your crotch, butt, or breasts —or does something to make you fear that s/he intends to touch you in asexual or offensive way, you can report him/her. Penalty: Assault without injury in general is a simple misdemeanor, punishable by a fine of between $65 and $625 and/or up to 30 days in jail. Indecent Contact with a Child Title XVI, Subtitle 1, Chap. 709 §709.12 It is illegal in Iowa for anyone over the age of 18 to fondle or touch, either over or under clothing, the inner thigh, groin, buttock, anus, or breast of anyone under the age of 18. If you are under 18 years old and a street harasser gropes you or grabs you in any way, or if this happens to a young person you care for, you can report him/her. Penalty: Indecent contact with a child is an aggravated misdemeanor, punishable by a fine of between $625 and $6,250 and/or up to 2 years in prison. Title XVI, Subtitle 1, Chap. 729 §729A.1 Iowa provides particular protections from crimes committed because of bias or prejudice. The statute on individual rights and hate crimes contains the following: "Persons within the state of Iowa have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability." If a street harasser assaults you because of your sex, race, sexual orientation, or another protected category, this harassment may be considered a hate crime. You can report any crime the person has committed, as well as any indication of hate or bias —such as using a racial, homophobic, or gender- based slur — to the police. Penalty: An assault in violation of individual rights — a hate crime— is a serious misdemeanor if no injury results from it. A serious misdemeanor is punishable by a fine of between $315 and $1,875 and/or up to 1 year in jail. If the assault results in injury to you, or the harasser uses or displays a weapon, the charges range from an aggravated misdemeanor to a Class D felony, with penalties as high as a fine of $7,500 and/or 5 years in prison. • Call 911 for help if: The crime is in progress You or someone else is physically hurt or have been threatened with physical violence You can provide information about who may have committed a crime. Know Your Rights: Street Harassment and the Law 14 Stop Street Harassment • Call the local police office's non -emergency number to submit a report afterward. For example, in Des Moines, this number is (515) 283-4811 and in Cedar Rapids it's (319) 286-5491. In Davenport, it is (563) 326-7979 and in Iowa City, it is (319) 356-5275. Be prepared to provide them with: o When it happened (date and time). o Where it happened (street location, store location, bus line or bus stop, park name, etc). o Who is reporting (your name and contact information). o A description of what happened. o The name and contact information of witnesses, if you spoke to any. o It can be helpful to include the law the crime falls under, such as Harassment, Iowa Code 7§ 08.7. If you're not sure which law you should use to report an incident of street harassment, just tell the police what happened and s/he or the district attorney's office can determine the appropriate charges. o A description of the harasser/s. • Many police departments also have online reporting forms, for example in Iowa City, you can report crimes like harassing phone calls by completing this online webform. • Some police departments also allow you to anonymously send a tip about a non -emergency incident, for example if you see a group of people routinely harassing passersby at the same location. o In Des Moines, you can do this by completing the online tip form, by calling 515-223-1400, or by texting the number 274637 and beginning the message with PCCS. o In Cedar Rapids, you can do this by texting the number 274637 and beginning the message with 5227. o In Iowa City, you can do this by calling (319) 358 -TIPS. • once you've reported a crime, if you've provided your contact information, within a few days, you will receive a call with a police report case number and may have to answer follow-up questions. Save a copy of the police report for your records. If someone tries to tell you that street harassment "isn't a big deal," or isn't illegal, don't buy it. You always have the right to be free from sexual harassment and assault in public. Know Your Rights: Street Harassment and the Law 15 I -4 CITY OF IOWA CITY IP8 MEMORANDUM Date: September 24, 2015 To: Geoff Fruin; Assistant City Manager From: Kent Ralston; Transportation Planner Melissa Clow; Special Projects Administrator Re: Mayflower Pedestrian Crossing on Dubuque Street Introduction: At the September 15th City Council Work Session, several questions were raised regarding the safety enhancements planned for the mid -block pedestrian crosswalk adjacent to the Mayflower Dormitory as part of the 'Gateway Project'. History/Background: During the project planning process there was much discussion about the appropriate crosswalk treatments at this location. While there was discussion about additional treatments above and beyond those typically used at a mid -block crosswalks, those concerns were lessened with the decision to construct a 6' sidewalk on the east side of Dubuque Street from Foster Road to Park Road - the rational being that pedestrians would immediately head south on the sidewalk and will use the pedestrian traffic signals available at the Park Road / Dubuque Street intersection rather than waiting for traffic and crossing mid - block. Discussion of Solutions: The approved design includes high -visibility fluorescent yellow warning signage, both in advance of the crosswalk and at the crossing itself, and high visibility `continental' crosswalk pavement markings - all of which are present today. Figure 1 — Staggered Crosswalk Design The pedestrian refuge area between north and southbound lanes will also remain with the new design. This is advantageous in that pedestrians only cross two -travel lanes (in the same direction) at a time. Engineering staff are also working on a design where the approaches to the crosswalk and the crossing in the median are deflected toward the direction of oncoming motorists. This `staggered' crosswalk configuration (Figure 1) forces pedestrians to turn toward traffic and improves the visibility of pedestrians. A bulb -out will also be integrated into the Mayflower Dorm bus pull -off area which will improve visibility of pedestrians and shorten the crossing distance for the northbound lanes. The project also includes curbs which are currently not present at the crossing. The addition of the bulb -out and the curbs will help 'formalize' the crossing and provide additional safety for pedestrians. The Council approved a 25mph speed limit (the current speed limit is 35mph) beginning between the Ridge Road/Terrell Mill Park and Taft Speedway intersections. This decrease in posted speed limit will also provide a safer environment for pedestrian crossings. Financial Impact: The financial costs to implement the crossing treatments are minimal. The costs for the treatments are included in the total project cost for the Gateway Project. Recommendation: Staff recommends moving forward with the design as outlined. 10-01-15 L1P9 Marian Karr From: Marian Karr Sent: Thursday, September 24, 2015 2:30 PM To: 'Perry Rassmusen' Subject: RE: Good news on taxis Mr. Rassmusen: Thank you for your email regarding the new regulations concerning taxi service in Iowa City. City staff have spent a great deal of time with content for a new website, new forms, and communications to companies, drivers, and the public on the new regulations. The Police Department will follow up with City Cab on the vehicle you mentioned. Often, especially during football season, you may see a vehicle painted but waiting for inspection or insurance prior to being permitted and listed on our website. However, that van should not be picking up passengers until properly permitted. Thank you again for your comments. Marian K. Karr, MMC City Clerk From: Perry Rassmusen [mailto:rasbo2l@gmail.com] Sent: Thursday, September 24, 2015 11:17 AM To: Marian Karr Subject: Good news on taxis Dear Marian Karr: I wanted to write to the City Clerk's office to say how pleased I am with the current compliance level of taxis with the new regulations in Iowa City. I see 110 taxis out there, and 109 are fully compliant as near as I can tell. If City Cab van CWT 095 (which is already painted and liveried) would just get himself on the list, we'd be 100% compliant, and that would be positively amazing. I have to compliment the City Clerk's office for streamlining everything and making everything clear to everyone involved. And I must also thank the Iowa City Police Department for their consistent policing of the taxis over the last two years, particularly Chief Hargadine and Officer Frank, who have been very helpful. Thank you for helping all of us help you. Yours, Perry A. Rasmussen, local driver, Marco's Taxi (IC City Council should probably see this letter also.) From: Tom Markus Sent: Thursday, September 24, 2015 12:20 PM To: Peter Byler Cc: Council; Geoff Fruin; Simon Andrew; Doug Boothroy; Tracy Hightshoe; John Yapp Subject: Re: Riverfront crossings payments -in -lieu I will certainly keep your views in mind as we develop our process for the appropriate use of payment in lieu of funds. By cc to Doug Boothroy I am asking him to develop appropriate recommendations. Sent from my Whone > On Sep 24, 2015, at 10:06 AM, Peter Byler <peterbyler@yahoo.com> wrote: > Hi Tom, > I'm writing as the newly minted chair of HCDC to put a bug in your ear with regards to payments -in -lieu of affordable housing that have or will start to come into the city in the next months and years. I believe strongly that HCDC is well equipped to handle recommending disbursement options to Council for these funds. There has been chatter in the nonprofit world in Johnson County about these funds going directly to a local nonprofit for distribution. Please rest assured that HCDC is prepared to hold meetings, visit projects, review applications, and whatever else is necessary to keep these funds under the auspices of Council and Staff to ensure they are used for the maximum benefit of Iowa City. Please let me know if you have any questions. > Thanks > Peter Byler BOARD OF SUPERVISORS Pat Harney, Chairperson Janelle Rettig Mike Carberry Rod Sullivan Terrence Neuzil 'ate To: Johnson County Resource Enhancement Committee Members From: Board of Supervisors Executive Assistant Andy Johnson 45n Date: September 22, 2015 Re: Please consider attending our local REAP Assembly N r+ N i cn REAP Assembly information for our region (Benton, Iowa, Johnson, Jones, and Linn Counties) When: Thursday, October 8, 2015 from bpm to 8pm Where: Conservation Education Center at FW Kent Park, 2048 Highway 6 NW, Oxford No RSVP is necessary. For more information, contact Brad Freidhof, Conservation Program Manager, at bfreidhof@co.johnson.ia.us. You can also visit the Iowa REAP Alliance Facebook Page at www.facebook.com/Iowa REAP and join the "2015 Oxford REAP Assembly" event. Iowa's Resource Enhancement and Protection (REAP) assemblies begin this fall, giving all Iowans an opportunity to discuss what their vision is for Iowa's outdoor recreation, soil and water enhancement, historical resources and land management and more. REAP assemblies are locally led meetings where issues can be brought forth and voted upon. Iowans can discuss the program, recommend changes and discuss impacts in their region. Delegates may also be selected from the local meeting to attend the REAP congress in January at the State Capitol in Des Moines. Each assembly represents a region of counties and participants are required to attend the region for the county in which they reside. Meetings are held in the evening and last 90 minutes. A list of REAP assembly locations is available online at www.iowareap.com. "We come to these meetings to listen to Iowans tell us what they want for their parks, trails, museums and other amenities," said Tammie Krausman, who coordinates the REAP program for the Iowa Department of Natural Resources. "This program belongs to Iowans and we want their input." Each year, REAP provides funding for local projects through a grant process and each year, the requests for city and county grants exceed the amount available by two or three times. Since the program debuted in 1989, more than $300 million has been awarded to more than 14,500 projects. "REAP benefits every county every year either through improved water quality, by preserving our historical assets or providing outdoor recreation and it has had a significant impact on the quality of life," she said. 913 SOUTH DUBUQUE STREET ♦ IOWA CITY, IA 52240 ♦ 319.356.6000 PHONE ♦ 319.356.6036 FAX www.JOHNSON-COUNTY.com • johnsoncountyia.igm2.com Jim Dickerson, PGA Golf 319-351-0596 p.1 10-01-15 IP12 CITY OF IOWA CITY 410 East Washington Street Iowa City, Iowa 52240-1826 (3 19) 356-5000 (319) 356-5009 FAX www. ICgov.org September 23, 2015 TO: The Honorable Mayor and the City Council RE: Civil Service Entrance Examination — Grant Accountant Under the authority of the Civil Service Commission of Iowa City, Iowa, I do hereby certify the following named person(s) as eligible for the position of Grant Accountant. Donetta Boone IOWA CITY CIVIL SERVICE COMMISSION Lyra V/'.Dickerson, Chair Jim Dickerson, PGA Golf 319-351-0596 P.1 j l i IP13 CITY OF IOWA CITY 410 East Washington Street lova Cite, Iowa 52240-1826 (319) 356-5000 (319) 356-5009 FAX WA%'V.icgov.org September 30, 2015 TO: The Honorable Mayor and the City Council RE: Civil Service Entrance Examination — Mass Transit Operator Under the authority of the Civil Service Commission of Iowa City, certify the following named person(s) as eligible for the position Operator. Lee Gutman Dennis Thompson Michael Edrington Nikolas Strait Roxanne Running Mary Lund Shumaker LaJonese Rodney Iowa, I do hereby of Mass Transit IOWA CITY CIVIL SERVICE COMMISSION Lyra - Dickerson, Chair From: City of Iowa City <CityoflowaCity@public.govdelivery.com> Sent: Thursday, October 01, 2015 6:03 AM To: Marian Karr Subject: City Council Listening Post SHARE Having trouble viewing this email? View it as a Web page. 10WACITY FOR IMMEDIATE RELEASE Date: October 1, 2015 Contact: Marian Karr Phone: 356-5041 City Council Listening Post The third City Council listening post will be held at Java House (west side), 713 Mormon Trek Blvd., Thursday, October 15, from 6:00-8:00 PM. Two Council Members will attend each listening post and those two Council members will report back to the entire Council. Members of the community are encouraged to stop by and meet with Council representatives to discuss any community issue. No formal agenda or presentation is planned. The City Council of Iowa City approved the 2013 Equity Report Action Plan and five areas of focus for relationship building at the February 23 Council meeting. The plan outlined top priorities and new initiatives developed by City staff and Council to promote racial equity and diversity. One of the new initiatives is to host listening posts in various locations throughout the year. Other listening posts are planned in other areas later in the year. For additional information, questions, or suggestions on future locations for listening posts please contact City Clerk Marian Karr at Marian-Karr(aa)iowa-citv.org, 319-356-5041; or Equity Director Stefanie Bowers at Stefanie-Bowers((Diowa-city.org, 319-356-5022. I r w •���� Questions? ..��� Contact Us CITY Of IOWA CITY VNIXO CITY OF III[PATORT STAY CONNECTED: 2P Marcia Bollinger From: City of Iowa City<CityoflowaCity@public.govdelivery.com> Sent: Thursday, October 01, 2015 7:02 PM To: Marcia Bollinger Subject: Concept design for City signature art piece is unveiled SHARE Having trouble viewing this email? View it as a Web page. City of IOWA CITY FOR IMMEDIATE RELEASE Date: Oct. 1, 2015 Contact: Marcia Bollinger Phone: 319-356-5237 Concept design for City signature art piece is unveiled When artist and architect Cecil Balmond visited Iowa City earlier this year to discuss the commission of a signature piece of his work, he studied the community and its people, seeking inspiration for art that would provide a distinctive anchor for the Downtown area, and in time, become an iconic symbol of the City itself. Tonight, at a public presentation at FilmScene, the internationally renowned artist from London, England, unveiled his design before a public gathering of artists, community members, business owners, and public officials anxious to see how Iowa City had inspired him. Titled, "The Lens," the concept for the sculpture blends art and science with a 30 -foot tall circular stone disc featuring a series of twisting louvers in the center of the disc that function like an eye. The opening and closing of the louvers are intended to create shadows while also capturing and refracting light and color. At night, an arc of colored light will be released from lights embedded in the disc. These light colors can be changed, creating unlimited and ever-changing visual appeal. Balmond's design honors the significance of the Black Hawk Mini Park on the Ped Mall, where the piece will eventually be installed. During his time in Iowa City, Balmond learned that for many people, the Ped Mall defines the Iowa City experience. His work will honor the history of this popular gathering spot with the creation of an interactive communal space that encourages continued public engagement through formal and informal gatherings, performances, protests, and conversation. His art has been exhibited internationally to critical acclaim, and his works are located in countries throughout the world. Additional concept drawings of the piece Balmond designed for Iowa City are available on the City's Facebook page at www.facebook.com/CitvoflowaCity. A fundraising campaign to help support the installation will get underway soon. For more information, contact the City's Public Art Coordinator Marcia Bollinger at 319-356-5237 or Marcia-bollinger@iowa-city.org. iCnP C lr HORtN IfOffIRIRN AU11 „l'llll� W�IM'IIRRi I ! t `1��YIIMI*� �OF AwftI� Questions? _ Contact Us CITY Of IOWA CITY UNMO mauttrauu STAY CONNECTED: SUBSCRIBER SERVICES: Manage Preferences I Unsubscribe I Help This email was sent to to" City, I n52240 wa-city.org using GovDelivery, on behalf of: City of Iowa City 410 ���� boy E Washington Street � Iowa City, IA 52240 9"� Iro w.xa sur' IP15 MINUTES PRELIMINARY PLANNING AND ZONING COMMISSION SEPTEMBER 17, 2015 — 7:00 PM — FORMAL EMMA J. HARVAT HALL, CITY HALL MEMBERS PRESENT: Carolyn Dyer, Charlie Eastham, Ann Freerks, Mike Hensch, Max Parsons, Jodie Theobald MEMBERS ABSENT: Phoebe Martin STAFF PRESENT: Geoff Fruin, Sara Hektoen, Sarah Walz, John Yapp OTHERS PRESENT: Bryce Dalton, Sally Scott, Ann Holton, Alicia Tremble, Mary Bennett, Kevin Munson, Pam Michaud, Kirk Witzberger, Bob Birchfield, Jake Christiansen RECOMMENDATIONS TO CITY COUNCIL: By a vote of 6-0 the Commission recommends approval of the current draft of the South District Comprehensive Plan including the language suggested in the Staff memo "if redevelopment of the manufactured housing parks is contemplated in the future, the availability of comparable housing and the impact on the residents should be considered". By a vote of 6-0 the Commission recommends approval of the Comprehensive Plan amendment to add three blocks, bounded by Burlington St, Gilbert St, Iowa Ave and Van Buren St, to the Downtown District of the Downtown and Riverfront Crossings Plan. The meeting was called to order at 7:00 PM. PUBLIC DISCUSSION OF ANY ITEM NOT ON THE AGENDA: There were none COMPREHENSIVE PLAN ITEMS: 1. A public hearing on an amendment to the Comprehensive Plan: The South District Plan. The plan may be viewed at www.icaov.ora/southic Walz reminded the Commission that they had deferred a vote on whether to recommend to the update to the South District Plan to this meeting in order to allow time to consider adding language to the plan that would address manufactured housing. She explained that there are three manufactured housing parks in the South District. Language in the North District Plan addresses the issue of potential redevelopment of a manufactured housing park and includes language regarding relocation assistance for residents of the manufactured housing park should it redevelop. At the previous meeting the question was raised if similar language should be added to the South District Plan. Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 2 of 14 Walz said at this time the City is not aware of any interest in redeveloping the manufactured housing parks in the South District. Staff does not recommend adding that same language that appears in the North District Plan because it might create confusion or an expectation that either the City or the developer would be required to provide such assistance. If the Commission wants to add language to the plan, Staff recommends the following language: "If redevelopment of the manufactured housing parks is contemplated in the future, the availability of comparable housing and the impact on the residents should beconsidered." Freerks opened the public hearing. Bryce Dalton (Sycamore LLC and Lake Calvin Properties LLC) stated that at the last meeting his clients shared concerns about the new plan update and is here tonight regarding a letter the Commission should have received from Michael Pugh containing a copy of a rezoning application his clients filed on September 4. The purpose of Mr. Pugh's letter was to ask the Commission to defer making any formal recommendation to the Comprehensive Plan amendment until that rezoning application has a chance to go through the process with the City. Freerks acknowledged the Commission did receive a copy of the letter via email. Dalton explained that in the application they are asking that the property be rezoned to drop the ID as part of the ID -RM, which they feel is appropriate given the history of this property. Dalton said his clients also asked that the rezoning be considered to be part of a conditional rezoning agreement signed by the City and his clients back in 1994, which Dalton gave a copy to each of the Commissioners. In that agreement, item 4 lists all his clients' obligations of which they feel they have complied. They feel now is the time to develop the property so they ask that the Commission defer making any recommendation to -City Council until the City has a chance to review the rezoning application. Eastham stated that the current Comprehensive Plan that applies to this parcel is the South District Plan that was adopted in 1997 and is wondering if the land use plan from 1997 is significantly different than the land use plan in this new amendment, he doesn't see a significant difference so wonders why hold off on approval of the amendment. Dalton explained that in 1997 when that plan was adopted his clients were not made aware of the changes that were being made, they were aware of the 1994 Plan and the IDNR designation that is on the property now is consistent with the 1994 Plan. The 1997 Plan is not consistent with what his clients' expectations were, as per their agreement with the City when their property was annexed into the City as part of the wastewater treatment plant expansion. They believe the 1997 Plan was wrong, and this new Plan is wrong, and therefore want to fix it with their rezoning application. Sally Scott (chair of Johnson County Affordable Homes Coalition) spoke in response to the staff memo using the language about relocation assistance for manufactured home residents that is in the North District Plan also in the South District Plan. Scott stated that the residents living in these mobile home parks tend to be lower income and will not have many options of where to live if they lose their homes due to a redevelopment. She recognizes there is nothing on the immediate horizon but given the growth in Iowa City it is very likely down the road that will happen. Scott feels the language that is in the North District Plan is very open and not terribly specific it says "consideration should be given to relocation assistance" and she disagrees with the idea that language will cause a lot of confusion and expectations with people thinking that requires either the City or developer to provide assistance. Scott feels it is more to say that the City is understanding of the challenges facing this population and it is the least that can be done for the folks facing these possible relocations. She would encourage the Commission to include that language Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 3 of 14 in the South District Plan and further thought be given on the part of this Commission and the City on how to protect folks in a time of great shortage of affordable housing. Freerks closed the public hearing. Eastham moved that the current draft of the South District Comprehensive Plan be adopted to include the language suggested in the Staff memo "If redevelopment of the manufactured housing parks is contemplated in the future, the availability of comparable housing and the impact on the residents should be considered including the possibility of relocation assistance." Hektoen stated that language is very similar to the North District Plan language but wants to make sure the perception isn't that the South District Plan creates any obligation for relocation assistance that is any different than that proposed by State or Federal law, which is why she recommended the language in the memo. Eastham asked what the Staff's meaning of including the word "impact" in their proposed language and if that meant relocation assistance. Hektoen confirmed that was their point, impact could mean financial assistance, or help finding sources to actually move the units, there are many impacts. Hensch agreed with the Staff's proposed language noting that the Comprehensive Plan is just a guiding document and should not be used to require someone to do something (like give financial assistance to relocations). This language makes the intent and expectations clear. Dyer agreed and feels the language provides enough guidance if the situation should arise. Given the shortage of affordable housing there is a growing understanding of the issues. Theobald likes Eastham's addition of the words "including the possibility of relocation assistance" because it is what is in the other Plan but would also support the Staffs recommended language. Eastham withdrew his motion. Eastham moved that the current draft of the South District Comprehensive Plan be adopted to include the language suggested in the Staff memo "If redevelopment of the manufactured housing parks is contemplated in the future, the availability of comparable housing and the impact on the residents should be considered." Theobald seconded the motion. Eastham stated he feels relocation assistance can be required for the developer or owner as part of a rezoning request. The Commission puts conditions on rezoning requests all the time that are in the public's interest. Freerks stated this Plan has been vetted quite a bit and feels the Plan should move forward and also has stated that 40 acres of RM in that area is not something she would support doing. Eastham read the letter from Mr. Pugh and does think the existing South District Plan land use scenario is very similar if not identical to the previous plan so does not see the point of delaying the approval of the South District Plan. He also feels that there are many improvements to the Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 4 of 14 current South District Plan from previous drafts but still feels there is an unresolved ability to implement affordable housing within any district. He hopes that this Commission and future commissions can use this Plan to find ways to develop homes with a range of price points with approvals of lot sizes and number of units, etc. He is encouraged to hear from developers that they are interested in reasonably prices and smaller unit homes. Freerks agreed and noted that it is not the burden of just one district to create affordable housing and City Council has directed the Commission to look for affordable housing opportunities throughout other areas as well. A vote was taken and the motion carried 6-0. 2. A public hearing for an amendment to the Comprehensive Plan to add a three block area, bounded by Burlington St, Gilbert St, Iowa Ave and Van Buren St, to the Downtown District section of the Downtown and Riverfront Crossings Master Plan. Yapp stated that the current IC2030 Comprehensive Plan identifies the majority of this three block area is for public use. The exception is the northeast corner of College Street and Gilbert Street which is identified as commercial. The two areas Staff has been focused on is the surface parking lot north of City Hall adjacent to the Unitarian Church and the surface parking lot east of the recreation center. Following a City Council work session in July where the Council heard a presentation of a development concept for the parking lot north of City Hall, City Council directed Staff to prepare a comprehensive plan amendment. So what Staff is proposing is to add these three blocks to the Downtown District of the Downtown and Riverfront Crossings Plan. Yapp noted that on the south side of Burlington Street, the Riverfront Crossings already District extends to Van Buren Street. He showed the land use map, and what is proposed is identifying the Unitarian Church as a potential historic building, identify the surface parking lot for mixed-use development, and the surface parking lot east of the recreation center as mixed- use development. He pointed out that the corner of College Street and Gilbert Street has already been zoned Central Business District. Hektoen asked Yapp to explain the mixed-use zoning designation and if that is the only zoning designation that will be allowed for those areas. Yapp explained that he was showing a land - use map so those designations were land -use designations in a comprehensive plan document, not a zoning designation. So any number of commercial zoning designations that allow mixed uses could be appropriate. Eastham asked if non mixed-use zonings would also be appropriate, like all commercial or all residential. Yapp said the appropriate zoning designations would allow a mix of uses, a particular use at a particular point in time on a particular property may be commercial or residential but different uses would be allowed. Yapp showed another map indicating the allowable building heights. With the Unitarian Church identified as a potential historical building, two — four stories of height along Iowa Avenue and Van Buren frontages with six stories of height in the interior of that block adjacent to City Hall would be allowed. East of the recreation center four — six stories is the range of appropriate heights for that property. The Commission asked that he show the current zoning map for this area, the majority of the three block area is zoned public, on the north side of Iowa Avenue is zoned CB -5 which is a central business support zone, on the east side of Van Buren Street there is a combination of CB -5 zoning and CB -2 zoning down to Burlington Street. The Historic Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 5 of 14 District starts in the Johnson Street corridor, approximately one block to the east. Yapp addressed the questions the Commission had at that last meeting about the future City facilities plan and if the parking lots were necessary for future growth of City facilities. The City's facilities plan was completed in 2012 and that plan did identify some needs such as pull through bays for the fire station, as well as some inefficient and underutilized spaces at the current recreation center and some inefficiencies within City Hall itself. City Hall has been undergoing a remodeling this summer which has resulted in a few departments and divisions merged which frees up space elsewhere in City Hall. Yapp invited Geoff Fruin, City Manager, to address the facilities plan more specifically. Fruin began by stating his office has no concern with shifting away from the public zone in these areas and it will not hamper the growth of City operations either short or long term. He feels that the proposed Comprehensive Plan amendment allows for opportunities that they would not otherwise have. With regards to the Public Safety operations, police and fire, the biggest need the fire department has here is for pull-through bays, as well as living quarters on the ground floor. The best way to achieve those needs would be to expand the Fire Department to the north, using the part of the Unitarian Church site with the non -historic office addition. Fruin mentioned several possible uses for the new spaces as well as re -use of the old space if the fire station was to expand, and that would be worked out as part of negotiations with developers. From the police department standpoint, the police space is challenged and they do have a need to grow but it is not a pressing need. The police department is not a fully contained operation in City Hall, they have several off-site functions including evidence storage, they have space in the Chauncey Swan Parking Lot, and rental space in the community. They do off-site training and do rely on outdoor parking so those are two areas they would like to address over time. If the Police Department were to build new, they would ideally look for four — five acres, but that is not in the capital improvements plan. However, they do not see the Police Department utilizing the surface parking lots for expansion. With regards to City Hall, Yapp mentioned the remodeling and how that is freeing up space in City Hall and feel comfortable that there is ample room to grow. There is not the same number of visitors to City Hall as in the past as more business is conducted online nor will there be an expansion in workforce that would require more space. Finally, with regards to the recreation center there has been some remodeling there to better utilize space, and there is another remodel project in the five year capital improvements plan to reorganize the upstairs lobby area to better utilize that space. The future expansion of recreation with be a joint effort with the school district and utilizing their facilities and putting amenities in the neighborhoods. The parking for the recreation center will be able to be accommodated within the Chauncey Swan parking facility. Theobald asked about the partnerships with the school district and questioned the success of that partnership and if the schools are granting access to their facilities to the general public. Fruin said that when Alexander school was being constructed the City was very involved in the planning and will be able to utilize that gym space once they finalize the 28E agreement. They have seen success with this program at Grantwood Elementary, noting that the City understands it is not perfect and the public cannot have access at all times, but it does provide sufficient recreation opportunities. In the five year capital plan improvements they have included another partnership with the new Hoover Elementary on the east side. Theobald also asked about the desire to increase the number of residents downtown and what the needs for recreation in the downtown area will need to be with that increase. Fruin noted that when the recreation center was built there wasn't the number of private recreation options Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 6 of 14 in the area that there is now so he doesn't see that an increase in downtown housing will necessitate a larger recreation center. Theobald said she thinks a larger recreation center would be an attraction to increase the downtown residents. People are dissatisfied with The University of Iowa recreation center due to the younger clientele, and the cost if you are not a student or staff member of The University of Iowa it is quite expensive. Eastham asked about Alexander Elementary and if there was City bus service to Alexander. Fruin was unsure about the bus service. Eastham asked if Alexander was open to every member of the public on afternoons, weekends. Fruin said the 28E agreement has not been brought before the City Council yet it is still being negotiated with the school district. Eastham asked about the agreement with Grant Wood. Fruin said it is not just an open facility 24/7, there must be Iowa City programs scheduled to use the space. Freerks asked if the current City Hall building could be expanded upward. Fruin said the building is not the most efficiently designed building in terms of workspace and there is the possibility that it could be torn down someday and another structure built on the location, but that is nothing the City has currently discussed. Eastham asked how far in the future the facilities study looked. Fruin said he wasn't sure but thought 20 years. Yapp noted that when he reviewed the study he doesn't recall a specific number of years into the future, it was more a focus on maintenance and space needs for existing City facilities and then assessing the current and near -future staffing levels of operations like the Police Department, Fire Department, and recreation center. The study then used national standards and identifying what type of spaces those operations should ideally have. Staff really used that study as a starting point to look at overall needs and then they look at what space do they have available to fill those needs. Eastham asked if the study identified the usage of the recreation center, how many people use the facility. Yapp replied that was not the focus of the study. Fruin stated that the parks department does look at that type of information and they do master planning and evaluation of their facilities in terms of usage. Eastham asked if there was a trend in usage. Fruin was not sure without reviewing the plan with the Parks and Recreation Director. Fruin reiterated that the City Manager's office is very comfortable with the Comprehensive Plan Amendment that is before the Commission and spend quite a bit of time reviewing long-term space and needs plans as well as workforce needs and how to grow and change. Yapp stated that his recollection of the Parks and Recreation Master Plan is that it identified geographic inefficiencies because of the centralized recreation center and recommends looking for opportunities for parks and recreation programming both in parks around the city, better utilizing existing parks, partnerships with the school districts to utilize indoor facilities and in the long term a west -side recreation facility, although that is not currently funded. Eastham asked about the potential expansion of the fire and police departments and if that expansion were to occur into the area now occupied by the Unitarian Church would that expansion block the alley that is currently there. Fruin said potentially yes, but they have not gotten into designs and will not do so until there is legislative support in change of land use. Freerks asked if the City has a long term commitment to keeping these core facilities functioning as they are and where they are with bringing more people to the Central District. Fruin agreed it is a critical part of the Downtown Plan to have those anchor public facilities in the Downtown District. Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 7 of 14 Freerks opened the public hearing. Ann Holton (Trinity Episcopal Church) stated that the September 3 Planning & Zoning meeting presented a moment of clarity for her when she heard the statement that everyone views these three blocks being discussed as part of downtown and always has. It made her realize that the struggle and strife regarding the addition of this three block area to the Downtown District hinges on the basic perceptions held as to whether this area is indeed part of the downtown or not. The City Staff obviously believes it to be true, Trinity Episcopal Church and others to the east that have opposed it do not. In fact the documents sent by the City for this meeting refer to this area as three civic blocks. The Iowa City 2030 Comprehensive Plan recommended that this area be viewed as a transition from the downtown to the residential area to the east. At the September 3 meeting John Thomas made the suggestion that this area should have its own district, the Civic District. That idea has merit and deserves serious consideration. Trinity Episcopal Church does understand that this meeting is about the Comprehensive Plan and not about rezoning but whether this area is in the Downtown District or not has future implications for future building height allowances. Trinity Episcopal Church does not object to the CB -2 and CB heights of proposed developments for the Unitarian Church area or the parking lot behind the recreation center. While the City has stated there are no plans for the parcels marked "government" the original plans for this area were different. And when the plans for this area were presented last year those areas on the corner where the recreation building now stands was calling for building heights of 7 to 15 stories high. Holton noted it is helpful to see the list of needs for the government departments and the plans for meeting them but needs change. And if, as was talked about last meeting, at some point in the future the recreation center is determined to be too small and the land for expansion is no longer available due to the proposals put in place then the City may revisit plans to redevelop the space and move the recreation center elsewhere. Trinity Episcopal Church stringently objects to more high-rises along Gilbert Street. The strain for close proximity and accessibility to their church remains a critical concern. Last spring when the original request to have this area added to the Downtown District failed Mayor Matt Hayek stated that this meant all future development in the three blocks would have to be zoned individually. Subsequently the Council voted to rezone the parcel at the northeast corner of College Street and Gilbert Street. So a precedent has been established to allow development to move forward without parcels being in a specific district. Neither development parcel that has been added to this plan that will be considered in the future should be denied based on being within the Downtown District or not. The zoning requirements for the Central Business District would also be consistent with plans that are also being shown for these projects if those three blocks were added to that district. The Civic District is always a possibility. Trinity Episcopal Church respectively opposes adding the three block area to the Downtown District. Alicia Trimble (Friends of Historic Preservation) stated this is a difficult proposal for them, they absolutely support the Unitarian Church as a historic landmark and Mr. Allen's proposed development and feel everyone has done their due diligence (the preservation community, the developer, the architect, the church) and this is a win-win situation for everyone. However what is concerning for the Friends of Historic Preservation is the need when talking about two separate parking lots to zone this whole district as downtown when it has served as a boundary from downtown and a historic neighborhood. She wanted to make it clear that Friends of Historic Preservation is 100% behind making the Unitarian Church a local historic landmark, they support Mr. Allen's proposal to the City Council, and they believe that is a win-win for everyone which the City Council agreed at their preliminary meeting on the matter. However Trimble stated that this could have been done much wiser on the part of the City, there is Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 8 of 14 something here that everybody wants but it is made 10 times more difficult because of this need to put this one parking lot and turn it into these three civic blocks which have been an ongoing debate. Mary Bennett stated her opposition to adding this area into the Downtown District and agrees with Mr. Thomas that we should be looking at is as a civic plaza where we have the last publically owned land. Bennett discussed the blue zones and stated that if we wanted to have a population in the future that is healthier, doesn't tax our systems and ways we need to provide recreation opportunities. She goes to the recreation center three days a week. There are between 300 and 400 young people under the age of 10 or 12 that come to do swim lessons about three times a year. There are at least 1200 young students that come from all over the city that come to that space. Because she teaches one of the classes, she is technically a City employee and she knows out at Mercer where they have swim meets they close that facility down so all those students then come to the recreation center in the summer and the size of her class triples sometimes. Bennett feels the City is underestimating the value of the recreation center and its potential for growth. She stated that she could not afford The University of Iowa facility rates or most of the other privately owned facilities. Plus she would have to drive her car to other locations, rather than being able to walk to the recreation center. She stresses the importance of the recreation center so they can all have a healthy future. Bennett also wants to talk about the environment. There is the potential with the Ralston Creek to be concerned about that water and water management. Perhaps they could put a rain garden in next to the recreation center. How will they be able to manage rain storms and water runoff? She wants the Commission to be aware that the health and well-being of the citizens is at stake if the City sells this land off. Bennett pointed out on the proposed land use map that green area that represents a park, but stated that park area will become a cement plaza and the front yard to Mr. Moen's building and not the public park it is now. If the land use map showed the features of that creek running along the side it would definitely show a different story. The other thing that disturbs her is the maps they are using are misrepresenting what might be created. Across from the New Pioneer Coop is now a very tall building that comes right up to the property lines, it's not the cute four or five houses that is being shown on the maps the City is showing. It is very deceptive. Bennett appreciates Mr. Eastham's comments at the last meeting that we consider these buildings as gracious parts of our community and need landscaping around them. Bennett was speaking with Judge Russell last week and he stated that he used to be able to see the Old Capital from the judge's chambers at the courthouse. The Old Capital and the courthouse were beacons of democracy reminding us of free speech and the ability to express ourselves about how our community grows. But just because one developer comes to the City Manager with a proposal are all the other citizens being ignored because they do not look at capitalism but rather quality of life issues. Bennett urges the Commission to reconsider this considerably, to bide their time on this, no need for a rampant rush, let's test the waters in areas to see how it works before we commit the last of the public space and remove it from a democratic situation that it currently exists in. She encourages them to create a Civic District that has its own zoning that protects it for the future. Kevin Munson (President Neumann Munson Architects) speaks in favor of the proposed Comprehensive Plan Amendment. This is not about zoning this evening this is about looking for opportunities for our city -owned parking lots. Munson doesn't believe those city -owned parking lots serve the community very well. They are not what they could be. He envisions something much more positive and exciting that will serve the community in bigger and better ways. The City still owns this ground they have a lot of opportunities to work with developers for the common good of all. There are some wonderful opportunities to change this area into a place Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 9 of 14 not for automobiles but for people that would enliven the streetscape, provide positive opportunities for live, work and play, and create a much more walkable pedestrian friendly area that ties our residential communities to our downtown. Munson noted that this can be a very sustainable project but without this opportunity to look at these properties different than just pure parking lots we will not get there. Munson asks for the Commissions' support to enable this to move forward, to look at this as an exciting opportunity to really improve our community. It would be nice to walk by these spaces and instead of seeing parking lots, see community friendly places that can provide growth for our community and city. Pam Michaud (109 S. Johnson St) stated she is generally in favor of preserving the Unitarian Church and the proposal that Jesse Allen has put forth and feels it is a moderate height. She too has problems with carpet rezoning of the civic district. The elephant in the room is of course the enormous opposition to the Chauncey building and the destruction of the Chauncey Swan Park. If they are looking into the future with nicely colored earth -toned squares at least we ought to have something represented that's been there for three years and that is the Washington Plaza (across from New Pioneer Coop) as was pointed out earlier. Michaud submitted a letter to the Commission asking for preservation of parkway trees because they can soften the effect of a new large building. She would beg to differ with Mr. Munson that an open parking lot is a waste of space, the farmers market is utilizing Chauncey Swan twice a week for six months of the year. It should be continue to be a green space, not an amphitheater with permeable pavers. To destroy the Chauncey Swan Park for the sake of geothermal is a gross misuse of public land. Finally Michaud stated that Mr. Munson is probably not aware of the many festivals that take place in the Chauncey Swan Park and ramp area. It is a destination for Friday night performances when they are rained out downtown. There was a Juneteenth celebration that drew 100 people or more, there was a solstice celebration, there are culinary walks and taste of Iowa events hosted there. Michaud feels the focus should just be on the Iowa Avenue and Gilbert Street lot right now. Kirk Witzberger (Unitarian Church board member) wanted to say in response to the "why rush into this" comments, he has not seen rushing on this issue, the Commission has been taking time to review and gather information. One of the reasons though for a sense of urgency is hanging in the balance is the fate of the historic Unitarian Universalist Society of Iowa City building that has been at the southeast corner of Gilbert Street and Iowa Avenue since 1907. Demolition of can be avoided if the buyer of the church property is able to move forward with a larger mixed-use project replacing the parking lot along Iowa Avenue. The current purchase agreement they have is to demolish the church by November 13 and the church agreed to that before they had a particular developer in mind. In order to get value for the property, this is what the church had to do. The developer's proposal benefits Iowa City in many ways beyond saving the church building. The project could include an addition to thL- fire station with safer pull-through lanes from Van Buren Street. Underground parking would double capacity, with dedicated spaces for city vehicles. Commercial space could allow for future expansion of city offices and public facilities. The residential component would include workforce housing. Environmental benefits of mixed-use, high-density housing include reduced sprawl and less energy use. The inefficient surface parking lot would be developed responsibly and begin generating property tax revenue. The tallest structure in the project would be toward Gilbert and is a good use of space. There has been conflict and divisiveness over some previous developments, this project can be a model of public-private cooperation that benefits the entire community. Witzberger encourages the Commission to pass the amendment. Bob Birchfield said he has lived for over 40 years a few blocks east of this area and feels the Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 10 of 14 neighbors shouldn't suffer the consequences of the Unitarian Church Congregations decision to expand their church. Also, if the Commission approves this amendment, Birchfield urges them to never use the word transitional again and delete it from all planning documents. Jake Christiansen said he is representing a pair of developers who are interested in developing the parking lot to the east of the recreation center and is here to voice support of the amendment to the Comprehensive Plan. He also wants to provide some answers to what creative minds can apply to an opportunity such as this. There has been a lot of talk about the recreation center, Ralston Creek and some of the other amenities in the area those are all reasons why his group is proposing to redevelop that parcel. Mr. Munson accurately said that surface parking lots are a drain on the energy a city has and as a pedestrian walking past those vacant parking lots it really has a negative impact on pedestrians compared to an active use on the first floor of a building and people living above adding to the energy. The recreation center and Ralston Creek are opportunities for additional people to have a high quality of life, recreational opportunities, and green space. Their project would propose to improve Ralston Creek along the border of the property, it would maintain the surface parking lot for the recreation center, so that the existing patrons of the recreation center can continue to park there, and then above that begin to build active uses at the College Street level with residential units above that. Christiansen understands the point of transition and his group is proposing a building that is six stories or less. So it would act as a transition from the higher buildings to the west and the very important neighborhood to the east. It is an opportunity to maintain the public uses that currently exist, activate the street, increase the tax base, and provide workforce housing. Freerks closed the public hearing. Freerks asked Yapp if he wanted to add anything regarding the setbacks. Yapp said after the discussion at the last meeting of the Commission he did look at the existing property line. Iowa Avenue is a very wide right-of-way due because it is the historic view shed to the Old Capitol. The right-of-way is about 120 feet wide. There is a part of the Unitarian Church that comes very close, if not right up to, the property line. The concern of the Commission was if a new structure was built close to the property line just east of the church that it may block view of the church. If a building were built close to the property line it would in relation with where the church is on the property line. Freerks said there are variations to the church abutting the property line so when talking about a long length building it is different than just one portion of the church building abutting the property line. Freerks noted that these things can be addressed when zoning is discussed. Yapp agreed and said those things are best addressed when there is an actual concept. Eastham asked about page 4 of the Staff memo of July 31 states the strategic infill of the Downtown District would still be incorporated into the governing planning document for this area and that section still includes the statement "buildings should be built to the property line" so why is that statement included. Yapp said that was existing language that is already in the Downtown District Plan. Eastham said he is not comfortable having that statement in the planning document that will apply to this three block area. Hektoen said this three block area was being proposed to be added to the planning document so the planning document cannot be changed. Freerks agreed but said the Commission could request that change in the future. Hektoen also said that there are any number of statements and goals in the document that address objectives and it is the Commission's job to balance all Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 11 of 14 those goals and statements. It is not a zoning document, it is a planning document and there is room for articulation with any application that comes before the Commission. Hensch moved to approve the Comprehensive Plan amendment to add three blocks, bounded by Burlington St, Gilbert St, Iowa Ave and Van Buren St, to the Downtown District of the Downtown and Riverfront Crossings Plan. Parsons seconded the motion. Hensch asked how Ralston Creek is addressed in any of the plans. Yapp said the Downtown and Riverfront Crossings Plan does recommend improvements to the creek including cleaning out a lot of the excess vegetation, bringing back native vegetation, stream bank stabilization, creating a trail along the creek as well as small wayside parks along the creek. Hensch asked if the City is responsible for those improvements as well as developers. Yapp said it would be both, the trail improvements they've done in other parts of the city some have been City initiated as well as sometimes as part of developments there can be requirements in the rezoning for improving the area along the creek. The creek is also subject to the sensitive areas ordinance where there is a buffer required along the creek. That buffer may be reduced in exchange for enhancement to the creek and enhancing the vegetation along the creek. Hensch noted he feels that Ralston Creek as well as other creeks and the Iowa River are resources that have not been nurtured and would like to see that happen. Hensch asked about the current parking lots, stating they appear to be constructed out of impervious materials so all the water is just running off those lots. Yapp confirmed that was correct. Eastham asked about what exactly is attached to this motion, what the repercussions will be and still has concerns about the setback requirements. He is not satisfied right now that putting these three blocks into the Downtown District Plan when that Plan has verbiage that states or recommends that properties should be built to the property line. Freerks stated that if the Commission were to approve this Comprehensive Plan Amendment they could follow up with language that directs Staff to look at specific concerns or questions. That is how they have addressed such concerns in the past. Hektoen said an amendment to that language is not necessary to allow or approve a building with setbacks or articulations. The objective is strategic infill and one of the possible ways of achieving that infill is to build to the property line. It is not an absolute it is just simply one of the guidelines to meet the objective. There are many ways to achieve the objective, the strategic infill, such as protecting historic character and historic buildings and one way of doing that may be to have a setback but that would be considered more appropriately examined at the rezoning application process. Freerks agreed and said the staff memo states it would not be inconsistent with the current Downtown and Riverfront Crossings Plan to impose a setback for this property upon rezoning. Hektoen reiterated that setbacks are decided at the rezoning stage, the comprehensive plans do not regulate to that degree. Freerks stated she is comfortable with Plan and the amendment. Theobald expressed concerns about losing the civic identity of this area. She agrees surface parking lots are not the best, she agrees that Jesse Allen has a great plan, but has grave concerns about giving up space that should be part of the civic area. She feels it is necessary to give Iowa City some identity that is separate from The University of Iowa. Hensch understands Theobald's concerns but also feels the partnerships with the developments and having property tax generating buildings that will have public uses in them is a win-win for Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 12 of 14 everybody. Eastham shares Theobald's concerns. Freerks stated she uses the parking lot on days she doesn't walk to work and feels this is her neighborhood but is excited about the possibilities for the expansions and feels the public/private partnerships can be successful. She understands the public's concerns about the area and agrees that it would be a shame for the Chauncey Swan Park to not be green space. Hektoen clarified that is not yet been decided and no plans to change Chauncey Swan Park have been approved. Freerks would like to see more green space brought into the area through the public/private partnerships and feels that parking lots are wasted space. The Chauncey Swan Ramp can continue to host the events and festivities it currently does. Eastham noted if the parking lots are wasted space they could be turned into parks. Freerks agreed but noted that having the increased tax base of the properties is something the City really needs. Hensch doesn't see a point in delaying this anymore. It is important to move this forward to preserve the historic building, to have improvements on Ralston Creek and to take these lots that are eyesores and develop them positively. He agreed there are some negatives but the positives outweigh the negatives. Eastham believes a more sober pace is to take the north block and deal with it, then the most southern block separately. He would like to leave the designation for the southern block as public for the time being. Yapp noted that these properties, regardless of what Comprehensive Plan they are part of, will remain zoned public until a rezoning application changes that. So the properties have no commercial value until they are rezoned. Eastham asked if the properties could only be rezoned if the current land use map shows them as a designation other than public, and Yapp confirmed that. Dyer asked about the earlier version where the Downtown District would extend beyond Van Buren Street and if there were any plans to reinstate that concept. Yapp said the Commission had recommended and the City Council had approved the area east of Van Buren Street to be part of the Central District Plan. Dyer noted that the elephant in the room is the Chauncey building and stated that one of the major problems was that the City requested proposals for the parcel before it was rezoned to accommodate such proposals. The advantage of this proposal is it is operating in the correct order of business and the fact that they can make adjustments as specific proposals come forward this should move forward. Eastham noted that nowhere in these conversations is affordable housing addressed, this is public land right now and he feels the City has an obligation to use that land for what is best for the entire community. There are two proposals one each for the north and south blocks that include residential uses and the City should insist substantial units be earmarked for affordable housing. Yapp noted that if any of the projects have tax -increment funds attached to the project, affordable housing is required in the project. Parsons stated that the City has an interest to use these lots as more than just a surface parking lot and it is a very exciting time for the area. A vote was taken and the motion passed 6-0. Planning and Zoning Commission September 17, 2015 — Formal Meeting Page 13 of 14 CONSIDERATION OF MEETING MINUTES: AUGUST 20, 2015 & SEPTEMBER 3, 2015 Dyer moved to approve the meeting minutes of August 20, 2015 and September 3, 2015. Hensch seconded the motion. A vote was taken and the motion passed 6-0. PLANNING AND ZONING INFORMATION: Theobald asked if the City was working on any topsoil due to the State changes that require topsoil put back on developments. So is the City of Iowa City looking at their own ordinance? Yapp said the City does not have its own topsoil ordinance but does have a grading and erosion control ordinance meant to prevent soil erosion on development sites which they do enforce. Dyer asked about the reference made to the rollback of taxes but she has not seen a clear explanation of how that is going to work in Iowa City. Yapp said staff has prepared information for the City Council on that and they can copy that information to the Commission as well. ADJOURNMENT: Theobald moved to adjourn. Hensch seconded. A vote was taken and motion carried 6-0. Z 20 OC W) T 0WN V OZ� NaN 06 Z W Z ~ Z Q Z J a Z H W W 0 ti ><><><>< 1 X I X xxx;x;xxx CW)X X X X X X X 0 NXXXXXX i x Go NXXXXXX 0 to X X— ui 0ti x x X i X i Z W W J G CM X 0 X X X x , X 0 CL X X X X X X ; X T NXXXXXX W V)WzaIx 1 X i Lo owe = �CLU)�x X X x x X X X; m XXXIXIOXX CM XXX 1 X 1 XXX XXX X ! X X X M CD ui — x x X i x x X N N X x x 1 W p! 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