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UDC Text Amendment Title 16_Fringe Area Development Standards_Pre-Annexation
Planning Services Department City Hall 50 West 13th Street Dubuque, IA 52001-4864 (563) 589-4210 phone (563) 589-4221 fax (563) 690-6678 TDD planning�citXofdubuque.org The Honorable Mayor and City Council Members City of Dubuque City Hall — 50 W. 13th Street Dubuque IA 52001 Dubuque mx•108 •ml] THE CITY OF DUB Masterpiece on the Mississippi April 11, 2014 Applicant: City of Dubuque Description: Amend Section 16-11-7 of the Unified Development Code to add Fringe Area Development Standards. Dear Mayor and City Council Members: The City of Dubuque Zoning Advisory Commission has reviewed the above-cited request. The application, staff report and related materials are attached for your review. Discussion Associate Planner Kyle Kritz reviewed the proposed text amendment, noting existing policy regarding fringe area development. The text amendment will codify the requirements for subdivisions within two miles of the City's corporate limits. Staff Member Kritz noted that subdivisions would be subject to the City's subdivision regulations and the developer will be required to sign a pre -annexation agreement. The agreement requires the property owner(s) to annex to the City when the corporate limits are adjacent to the subject property. The agreement typically abates the City portion of property taxes for 10 years on a sliding scale. There were no public comments. The Zoning Advisory Commission discussed the request, and felt it was appropriate. Recommendation By a vote of 4 to 1, the Zoning Advisory Commission recommends that the City Council approve the request. A simple majority vote is needed for the City Council to approve the request. Respectfully submitted, \71/ Patrick Norton, Chairperson Zoning Advisory Commission Attachments Service People Integrity Responsibility Innovation Teamwork Masterpiece on the Mississippi ['Variance DConditional Use Permit DAppeal ❑Special Exception ❑Limited Setback Waiver ❑Rezoning/PUD/ID Dubuque bitd wartan PLANNING APPLICATION FORM Preliminary Plat ❑Major Final Plat ['Minor Final Plat ['Simple Site Plan ['Minor Site Plan ❑Major Site Plan ❑ Simple Subdivision ®Text Amendment ❑ Temporary Use Permit DAnnexation ❑Historic Revolving Loan ❑Historic Housing Grant City of Dubuque Planning Services Department Dubuque, IA 52001-4805 Phone: 563-589-4210 Fax: 563-589-4221 planning@cityofdubuque.orq ['Certificate of Appropriateness ['Advisory Design Review (Public Projects) ['Certificate of Economic Non -Viability ❑Historic Designation ['Demolition in Conservation Districts ['Port of Dubuque Design Review Please type or print legibly in ink Property owner(s): N/A Phone: Address: City: State: Zip: Fax #: Cell #: E-mail: Applicant/Agent: City of Dubuque Planning Services Department Address: 50 W. 13th Street City: Dubuque Fax #: Cell #: E-mail: planning@cityofdubuoue.org Site location/address: N/A Neighborhood Association: Existing zoning: Proposed zoning: District: Landmark: ❑ Yes ❑ No Legal Description (Sidwell parcel ID# or lot number/block number/subdivision): N/A Total property (lot) area (square feet or acres): N/A Describe proposal and reason necessary (attach a letter of explanation, if needed): Amend Section 16-11-7 of the Unified Development Code to add fringe area development standards. Phone: 563-589-4210 State: IA Zip:52001 CERTIFICATION: I/we, the undersigned, do hereby certify/acknowledge that: 1. It is the property owner's responsibility to locate property lines and to review the abstract for easements and restrictive covenants. 2. The information submitted herein is true and correct to the best of my/our knowledge and upon submittal becomes public record; 3. Fees are not refundable and payment does not guarantee approval; and 4. All additional required written and graphic materials are attached. Property Owner(s): Applicant/Agent: Date: Date: 3/a0 FOR OFFICE USE ONLY — APPLICATION SUBMITTAL CHECKLIST Fee: Received by: Date: ?PG/it/Docket: Masterpiece on the Mississippi Dubuque *weft city 1111r 20.71.2012. March 20, 2014 TO: Zoning Advisory Commission FROM: Kyle L. Kritz, Associate Planner SUBJECT: Amendment to Section 16-11-7 of Unified Development Code (UDC) to add Fringe Area Development Standards INTRODUCTION The Code of Iowa allows cities to establish extraterritorial jurisdiction areas within two (2) miles of the city corporate boundaries, known as the fringe area, for the purpose of reviewing and approving subdivisions. The Code of Iowa further grants cities the authority to require that subdivisions within the fringe area adhere to the city's subdivision standards and conditions implemented as part of the review and approval of a subdivision. In 2004, the Dubuque City Council adopted the fringe area development policy and the accompanying fringe area map. The fringe area map designates primary and secondary growth areas for which the policy was established, review and approval criteria. These growth areas were determined based on an area's proximity to the City limits and the ability to serve the area with gravity sanitary sewer service. In 2006, the City conducted an annexation study. A review of that 2006 study has determined that an update of the City's fringe area development policy is also needed to reflect the acquisition of property for the construction of the Southwest Arterial, the extension of City utilities to the Dubuque Regional Airport, and the continued growth and development of the community in a regional context. DISCUSSION The updated fringe area development policy will apply equally to all subdivisions within the City's two (2) mile extraterritorial jurisdiction. This two (2) mile fringe area will be expanded automatically as annexations occur, except in areas of overlapping extraterritorial jurisdiction control by communities surrounding the city of Dubuque: Asbury, Sageville, Centralia, and Peosta. The Code of Iowa dictates that where overlapping extraterritorial jurisdiction boundaries exist, the community closest to the proposed subdivision jointly reviews the subdivision with Dubuque County. Memo to Zoning Advisory Commission Amend UDC Section 16-11-7 Page 2 For the purpose of this updated fringe area development policy, the term "subdivision" includes any Plat of Survey or lot split that divides an existing lot into two (2) or more lots for any reason. Section One: Pre -Annexation Agreement Requirement • New subdivisions subject to the city of Dubuque's fringe area development policy will be required to have a pre -annexation agreement as part of the subdivision approval by the City Council (or City Planner in the case of a Plat of Survey or Lot Split). • The pre -annexation agreement will be prepared with input from an in-house committee made up of the City Manager, City Attorney, City Planner, City Engineer, and/or their designees. • Each proposed subdivision will be reviewed in Tight of existing City water and sanitary sewer utility systems and future extension of those utility systems, the Comprehensive Plan and Future Land Use Map, and the Annexation Study for purposes of establishing terms of the agreement. • Waiver of Pre -Annexation Agreement ✓ The City Manager may waive the pre -annexation agreement upon a showing of good cause. ✓ A developer may appeal to the City Council to waive the pre -annexation agreement upon a showing of good cause, if the City Manager does not grant a waiver. Section Two: Fringe Area Subdivision Requirements • All subdivisions must comply with Article 16-11, Land Division, of the City of Dubuque Unified Development Code. • Each subdivision will be required to provide sufficient easements for the extension of City water and sanitary sewer utility systems to serve each individual lot within the subdivision. • Each major subdivision shall comply with the City of Dubuque sustainability requirements for new subdivisions, including obtaining score of forty (40) points as established in Article 16-11. • New streets that access City or County roadways must comply with ASHTO standards for sight visibility as determined by the City Engineer. Memo to Zoning Advisory Commission Amend UDC Section 16-11-7 Page 3 • To facilitate planned and orderly growth, developers of major subdivisions must provide a preliminary plat for the entire area anticipated to be developed as part of the subdivision. • Subdivisions and developments which are approved prior to annexation shall provide a mechanism for transfer of public right-of-way (ROW) ownership for County roads to the City upon annexation. • Private roads and streets in subdivisions and developments that are not under the County's ownership prior to annexation shall remain as private roads and streets upon annexation to the City, unless and until such time as they are brought into compliance with City standards and accepted by the City as public streets. • Developers shall be required to utilize stormwater management and erosion control measures, and stormwater retention/detention facilities where appropriate in accordance with applicable federal, state, county and city laws, regulations and policies. Exception of Specific Subdivision Requirements: The Zoning Advisory Commission and City Council, when acting upon an application for preliminary or final subdivision approval, has the power to grant such exceptions from the requirements of Article 16-11 for subdivision approval as may be reasonable and within the general purpose and intent of the provision for subdivision review and approval of the Article, if enforcement of one (1) or more provisions of the Article is impracticable or will exact an undue hardship because of unique conditions pertaining to the land in question. Attached to this memorandum is a memorandum from Assistant City Attorney Maureen Quann that provides guidance regarding whether a city can require a pre -annexation agreement as part of plat approval. In addition, attached to Maureen Quann's memo is additional background information, including the City's previous Fringe Area Policy and an opinion by the State of Iowa Attorney General on whether a city can require the owner's consent to annex as a condition to approval of a subdivision plat. RECOMMENDATION Planning staff recommends that the Zoning Advisory Commission review the information provided and recommend approval of the proposed amendment to add Fringe Area Development Standards to Section 16-11-7 of the Unified Development Code. KLK/mkr Attachments Masterpiece on the Mississippi MEMORANDUM MAUREEN A. QUANN, ESQ. /Ian n ASSISTANT CITY ATTORNEY I,TU'.t v�C�—�� To: Michael C. Van Milligen City Manager DATE: March 10, 2014 RE: Pre -Annexation Agreement Requirement for Approval of Plat of Survey or Subdivision Within Two Miles of the City's Corporate Limits Introduction The purpose of this memorandum is to provide guidance regarding whether the City can condition plat of surveyor subdivision plat approval for property within two (2) miles of the City's corporate limits upon the property owner entering into a pre -annexation agreement. Background Several owners of property located within two (2) miles of the City's corporate limits have submitted plats of survey or subdivisions for approval by the Planning Services Department. Two of these property owners are asking the City Council to waive the City's requirement that these property owners enter into a pre -annexation agreement as a condition of the plat of survey or subdivision plat approval. The pre -annexation agreement requires a property owner to annex when the property become contiguous with the City of Dubuque. One of the property owners has raised a question about the legality of such a requirement. Discussion After consultation with Planning Services and review of Iowa law, it is our opinion that the pre -annexation agreement requirement is a legal requirement. Iowa Code § 354.9 Iowa Code § 354.9 authorizes a city to review subdivision plats or plats of survey for properties located outside the city's boundaries as long as the city establishes by OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL mquann@cityofdubuque.org ordinance the area subject to the city's review and approval. Pursuant to § 354.9, City of Dubuque Code of Ordinances § 16-11-2 establishes the city's ability to regulate and review all land to be divided within two (2) miles of the limits of the city (the Fringe Area). Fringe Area Policy In March, 2004, the City Council approved the proposed Fringe Area Policy Agreement (the Agreement) between the City and Dubuque County by Resolution 90-04. Although the County ultimately did not enter into the Agreement, the City Council adopted the provisions of the Agreement as the City's policy for fringe area development. Resolution 90-04 states: "Section 1. That the Fringe Area Policy Agreement is hereby adopted as the City's policy for fringe area development." The Agreement describes the Fringe Area as the extraterritorial jurisdiction area within two (2) miles of the City boundaries and defines a pre -annexation agreement as an "agreement between the City of Dubuque and the owners of real estate located in the unincorporated areas of the County, which sets forth certain terms and conditions relative to future annexation to the City of Dubuque." Agreement, section A. The Agreement requires pre -annexation agreements for properties over two (2) acres in size located in primary and secondary growth areas within the Fringe Area. Section E(1)(a)(3) of the Agreement, which covers primary growth areas, states: "The City shall require a pre -annexation agreement setting forth any and all of the above Fringe Area Development Standards and any additional standards unless the need for a pre -annexation agreement is waived by the City." Section E(2)(a)(4) of the Agreement, which covers secondary growth areas, similarly states: "The City shall require a pre -annexation agreement setting forth any and all of the above Fringe Area Development Standards and any additional standards unless the need for a pre -annexation agreement is waived by the City." Because the City Council adopted the terms of the Agreement as the City's policy for Fringe Area development, the City has had a Council -approved written policy requiring pre -annexation agreements since March, 2004. As the City currently begins extension of services such as utilities farther into primary and secondary growth areas, pre- annexation agreements help establish how such service extensions will be implemented. Iowa Attorney General Opinion No. 05-5-1 An opinion issued by the Iowa Attorney General on May 13, 2005 concludes that a city has the authority to condition approval of subdivision platting of land within the two (2) mile extraterritorial area upon a property owner's agreement to annexation. The opinion states that under Iowa Code § 354.9, a city "may condition the city's approval of OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330,HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL mquann@cityofdubuque.org subdivision platting of land within the two-mile extraterritorial area around the city limits on the property owner's consent to annexation if the city's comprehensive plan shows that the city has planned for development of the land as part of the city's growth area and has the capability to extend municipal services such as water and sanitary sewer that would otherwise not be available to the subdivision." The Iowa District Court for Linn County relied on Iowa Attorney General Opinion No. 05- 5-1 when granting the City of Cedar Rapids declaratory judgment when the City's annexation agreement, signed as a condition to approving a preliminary plat, was challenged. The District Court declared the City's annexation agreement was valid and enforceable. Attached for your review are Resolution 90-04, the City's Fringe Area Development Policy (in the form of the Fringe Area Policy Agreement between Dubuque County and the City of Dubuque, Iowa), and Iowa Attorney General Opinion No. 05-5-1. MAQ:tls cc: Barry Lindahl, City Attorney Lura Carstens, City Planner /Kyle Kritz, Associate Planner OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563) 589-4381 / FAx (563) 583-1040 / EMAIL mquann@cityofdubuque.org Prepared by: lasra Carstens CRY Planner. Address: City Hall 60 W. i3'" St Telephone: 689.4210 RESOLUTION NO. 90 - 04 RESOLUTION ADOPTING A FRINGE AREA POLICY AGREEMENT BETWEEN DUBUQUE COUNTY AND THE CITY OF DUBUQUE, IOWA • WHEREAS,it is in the interest of the Cityof Dubuque to establish policies for the orderly growth and development of the unincorporated fringe area within two miles • of the City boundaries; and WHEREAS; such policies are necessary to more effectively and economically provide seivices for future growth and development and to protect and preserve the fringe.area's natural resources and its environmentally sensitive features; and . . WHEREAS, Chapter 28E of the•lowa Code enables two or more local • governments to enter into agreements to cooperate for their'mutual advantage; and . WHEREAS, the Iowa Code allows the City to establish an extraterritorial jurisdiction area, known'as the fringe area; within two miles of the City boundaries for • the purpose of reviewing and approving subdivisions; and • WHEREAS, the Iowa Code further grants to the City the authority to require that . subdivisions Within the fringe area adhere to the City'ssubdivision standards and • conditions, unless the City establishes alternative standards and conditions, via a 28E . agreement between the City and the County; and • . ' " WHEREAS, the Dubuque Comprehensive Plan includes objectives to encourage City -County cooperation to develop policies that enhance development of fringe areas and avoid unregulated sprawl; and the Proposed Land Use Map outlines the extent of urban development expected in the future. 'Resolution No: ,;- 04 Page 2 • • NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY • OF DUBUQUE, IOWA: • . Section 1. That the Fringe Area Policy Agreement is hereby adopted as the City.'s • policy for fringe area development.. • • . Section 2. That the Mayor is hereby authorized to sign arid submit the Fringe Area Policy Agreement to the Dubuque County Board of Supervisors for their review •and adoption. Passed, approved and adopted this 1st day of March Attest: , 2004. 11- /W/O eanne F. Schneider . • City Clerk • FRINGE AREA POLICY AGREEMENT BETWEEN DUBUQUE COUNTY AND THE CITY OF DUBUQUE, IOWA WHEREAS, it is in the interest of Dubuque County (the "County") and the City of Dubuque (the "City') to establish policies for the orderly growth and development of the unincorporated fringe area within two miles of the City boundaries; and WHEREAS, the County and the City mutually agree that such policies are necessary to more effectively and economically provide services for future growth and development and to protect and preserve the fringe area's natural resources and its environmentally sensitive features, and WHEREAS, Chapter 28E of the Code of Iowa enables two or more local governments to enter into agreements to cooperate for their mutual advantage; and WHEREAS, the Code of Iowa allows the City to establish an extraterritorial jurisdiction area, known as the fringe area, within two miles of the City boundaries for the purpose of reviewing and approving subdivisions; and WHEREAS, the Code of lowa further grants to the City the authority to require that. subdivisions within the fringe area adhere to the City's subdivision standards and conditions, unless the City establishes alternative standards and conditions for review and approval of subdivisions via a 28E agreement between the City and the County; and WHEREAS, the Dubuque County Comprehensive Land Use Development Plan and Future Land Use Development Map adopted September 23, 2002 calls for the preparation and adoption of development plans and agreements between the County and the City regarding the municipality and its environment; and • WHEREAS, the City of Dubuque Comprehensive Plan and Proposed Land Use Map adopted in November 18, 2002 includes objectives to encourage City -County cooperation to develop policies that enhance development of fringe areas and avoid unregulated sprawl, and also outlines the extent of urban development expected in the future. NOW, THEREFORE, THE COUNTY AND THE CITY AGREE AS FOLLOWS: SECTION I. Fringe Area Development Policies The parties accept and agree to the following development policies regarding • annexation, zoning, and subdivision/development review for the City of Dubuque's two- mile extraterritorial jurisdiction, or fringe area, as authorized by the Code of Iowa: A. Definitions The following words and phrases used In this Fringe Area Policy Agreement are defined as follows. City Standards: Those design and improvement standards and specifications described in Chapter 42, Subdivision Regulations, of the City Code of Dubuque and/or established by the City Council and/or City Manager which the City imposes on any subdivision or development within the City limits of Dubuque, including, but not limited to, street design, water distribution systems, sanitary sewer systems, and drainage regulations. Conceptual Development Plan: A map or plan indicating the proposed layout of the • planned unit development that is submitted to the approving authority for preliminary approval. County Standards: Those standards described in the County's Zoning Ordinance, Subdivision and Platting Ordinance, and Flood Plain Management Ordinance which the County imposes on any subdivision in the unincorporated areas of Dubuque County, including, but not limited to, street design, water distribution systems, sanitary sewer systems, and drainage regulations. Developer: An individual, two (2) or more individuals, a partnership or a corporation, a group or association of persons having a common or individual interest in a tract for the purpose of having land subdivided or developed, and/or for improvements to be made • to the land. Development: Construction, grading, excavation, alteration, conversion, or other land disturbing activity typically associated with improvements to be made to the land. For purposes of this Agreement, this definition shall apply only to any development project that is larger than two (2) acres, the minimum acreage required by the City for a planned unit development, but does not require a subdivision. Infrastructure: Facilities and services needed to sustain industry, residential, commercial and all other land use activities, including but not limited to public and private. utilities, Water supply, communication and transportation systems, streets, roads, sewers, . sewage disposal, stormwater management, street lights, and public facilities such as fire/police protection, perks, and schools. Improvement: Any change to a lot, block, tract, or parcel of land necessary to prepare it for building sites, including, but not limited to, grading, filling, street paving, curb paving, gutters, street lights, street trees, sidewalks, walkways, wells, water mains, septic systems, sewers, drainageways, stormwater detention/retention facilities, and other public works and appurtenances: Open Space: That part of a lot, block, tract, or parcel of land not occupied by buildings, structures, parking or loading areas, driveways or any principal or accessory use. Pre Annexation Agreement An agreement between the City of Dubuque and the owners of real estate located in the unincorporated areas of the County, which sets forth certain terms and conditions relative to future annexation to the City of Dubuque. Preliminary Plat: A map or plan Indicating the proposed layout of the subdivision that is submitted to the approving authority for preliminary approval. • Subdivision: A division of a lot, block, tract, or parcel of land into two (2) or more lots or other division, including all changes in right-of-way lines, property lines or lot lines.., Zoning: The delineation of districts and the establishment of regulations governing the use, placement, spacing, and size of land and buildings. B. Purpose 1. The Fringe Area Policy Agreement is intended to accomplish the following objectives: . a. 'Provide for orderly and efficient development patterns appropriate to a non - urbanized area. • b. Protect and preserve the Fringe Area's natural resources, environmentally • sensitive features and farmland. c. Encourage development in areas with physical characteristics which can best accommodate City services. d. Effectively and economically provide services for future smart growth and development. e. Encourage smart growth development and discourage urban sprawl within the Fringe Area. f. Inform citizens and developers of the parties' unified plan for development in the Fringe Area, g. Protecfithe City's ability to grow and reduce land use conflicts. 2, In light of these objectives, the City and the County have examined development potential of the City of Dubuque Fringe Area and have determined that development within this Fringe Area is to occur in accordance with the Fringe Area Map, Fringe Area Development Policies, and Fringe Area Development Standards contained in this Agreement. • 3. The Fringe Area Map, the Fringe Area Development Policies, and the Fringe Area Development Standards of this Agreement shall be interpreted so as to be consistent with the policies of the Dubuque County Comprehensive Land Use • 4 Development Plan and the City of Dubuque Comprehensive Plan and Annexation Study. C. Fringe Area Map • The Fringe Area Map, which is. Exhibit 1 of this Agreement, designates the primary and secondary growth areas for the City of Dubuque's two-mile extraterritorial jurisdiction. • The City's two-mile extraterritorial jurisdiction overlaps the two-mile extraterritorial jurisdiction of other municipalities in the County. D. Fringe Area Development Policies The parties agree to apply the following Development Policies for subdivisions and developments over two (2) acres in the Fringe Area. 1. Encourage development according to the Dubuque County Comprehensive Land Use Development Plan and other land use ordinances. • • 2. Encourage development according to the City's Comprehensive Plan, Proposed Land Use Map, Annexation Study, and other land use ordinances. 3. Protect the public health by requiring developers to meet or exceed minimum standards for water and wastewater systems in all developments within the Fringe Area pursuant to Dubuque County Health Department regulations and/or the State of Iowa regulations as applicable. 4. Utilize good Access Management principles within the fringe area. New development shall be limited in regard to the number of and location of access points on to a - County road to reduce traffic congestion, discourage strip development and promote public safety. Topography, physical constraints, existing road conditions, and existing and planned future development shall all be considered in determining access to County roads. 5. Facilitate planned and orderly growth by requiring developers to show a preliminary plat or a conceptual development plan for the entire development. 6. Protect public health and the environment by requiring developers to meet or exceed minimum local, state and federal standards for erosion control measures, stormwater management, and stormwater retention/detention facilities. 5 E. Fringe Area Development Standards The parties agree to apply the following Fringe Area Development Standards to subdivisions and developments over two (2) acres in the Fringe Area: 1. Primary Growth Areas a. Annexation • 1) These areas can be serviced by City utilities. They represent areas that could at any time be under active development. This agreement will allow greater control over land use and development standards to help ensure more orderly development patterns. • 2) As set forth in the City of Dubuque's Comprehensive Plan and Annexation Study, the City will likely annex land within these primary growth areas. New subdivisions and developments within these areas shall be required to meet the City Standards' and utilize good Access Management principles. 3) .The City shall require a pre -annexation agreement setting forth any and all of the above Fringe Area Development Standards and any additional standards unless the need for a pre -annexation agreement is waived by the City. 4) The City, concurrent with annexation and based on available funding, shall • consider reimbursing the County for Improvements made to County roads prior to annexation based on an amortization schedule agreed upon by the parties, with the following conditions: • a) If the roadway fronts property for which a pre -annexation agreement with the City of Dubuque has been filed; and b) If based on the lifecycle of the roadway, not to ekceed 25 years. 5) The City, concurrent with annexation and contingent upon available funding, may consider providing financial incentives to developers of new owner occupied residential subdivisions that meet the City's criteria for affordable housing in - these areas to encourage compliance with the City Standards, b. Zoning 1) . Any zoning changes in the primary growth areas shall consider the County's . Comprehensive Land Use Development Plan and Future Land Use Map as -well . •as the City's Comprehensive Plan and Proposed Land Use Map. 6 2) Land in the primary growth areas may develop in conformance with existing zoning. • .c. Subdivision/Development Review 1) Subdivisions and developments which are approved prior to annexation shall provide easements for future connections to City utilities and provide a mechanism for transfer of public right-of-way (ROW) ownership for County roads to the City upon annexation. • 2) Private roads and streets in: subdivisions and developments that are not under the County's ownership prior to annexation shall remain as private roads and streets upon annexation to the City, unless and until such time as they are brought into compliance with City Standards and accepted by the City as public streets. - 3) New subdivisions and new developments shall conform to City Standards, including but not limited to City specifications for streets, sanitary sewer lines,. . stormwater management, erosion control measures, stormwater • retention/detention facilities, fire protection and suppression, and water lines. 4) Developers may be required to use shared wells and shared or central sewage treatment systems where appropriate. 5) Developers shall be required to utilize stormwater management and erosion control measures, and stormwater retention/detention facilities where appropriate in accordance with applicable National Pollutant Discharge Elimination System (NPDES) regulations. 2. Secondary Growth Areas a. Annexation 1) These areas represent transitional areas between rural and urban development because of their proximity to Primary Growth Areas, ability to be served by City utility extensions, and their relationship to major transportation corridors. 2) The secondary growth areas have been divided into two categories: a) those that can be served with gravity sewers, and b) those that can be served by a combination of gravity sewers and lift. stations. 3) As set forth in the City of Dubuque's Comprehensive Plan and Annexation Study, the City could potentially meet the infrastructure needs of land within these areas, but does not have immediate plans for annexation. Therefore, these areas may be developed in accordance with City Standards, or they may be allowed to develop in accordance with the County Standards. Developments in these areas shall utilize good Access Management principles. 4) The City shall require a pre -annexation agreement setting forth any and all of the above Fringe Area Development Standards and any additional standards unless the need for a pre -annexation agreement is waived by the City. b. Zoning 1) Any zoning changes in the secondary growth areas shall consider the County's Comprehensive Land Use Development Plan and Future Land Use Map as well as the City's Comprehensive Pian and Proposed Land Use Map. 2) Land in the secondary growth areas may develop in conformance with existing zoning. c. Subdivision/Development Review 1) Since these secondary growth areas have the potential to be annexed by the City, the roadways in these transitional zones will be encouraged to have an - urban street profile with integral curb and gutter built to City or County Standards. If the roadways are built with a rural profile with drainage swales, they shall meet City Standards for pavement width for private streets, and all Other County Standards at a minimum. • 2) Since these secondary growth areas have the potential to be annexed by the City, cluster subdivisions are encouraged to utilize shared wells and shared or central sewage treatment systems in these areas. Cluster developments preserve environmentally sensitive areas for open space and parkland, resulting in compact development which requires less infrastructure, and are more efficient for the provision of services. 3) Cluster subdivisions designating a portion of the property as an outlot for park area, stormwater•management; and/or open space, will be encouraged when any development is considered. 4) If cluster subdivisions are not utilized, developments are limited to subdivisions with a maximum lot size of one acre, a minimum front setback of 35 feet, and a maximum front setback of 50 feet. This promotes compact, higher density development suitable to these transition areas. 8 5) Subdivisions and developments which are approved prior to annexation are required to provide easements for future connections to City utilities and provide a mechanism for transfer of public right-of-way (ROW) ownership for County roads to the City upon annexation. 6) Private roads and streets in subdivisions and developments that are not under the County's ownership prior to annexation shall remain as private roads and streets upon annexation to the City, unless and Until such time as they are brought into compliance with City Standards and accepted by the City as public streets. 7) Developers may be required to use shared wells and shared or central sewage treatment systems where appropriate. 8) Developers shall be required to utilize stormwater management and erosion control measures, and stormwater retention/detention facilities where appropriate in accordance with applicable National Pollutant Discharge Elimination System (NPDES) regulations. 3. Land Outside Study Boundaries These areas are within the Fringe Area but outside of the City of Dubuque's anticipated growth boundaries. Development in these areas is required to conform to County Standards and to consider the policies of the Dubuque County Comprehensive Land Use Development Plan and Future Land Use Map. SECTION II. Administration of Land Use Regulations As a rule, zoning regulation of the unincorporated area is the County's prerogative because the County has adopted a Zoning Ordinance. The City, however, exercises authority over subdivision regulation in the unincorporated area that Is in the City's two- mile extraterritorial jurisdiction. Annexation is also a' function of cities. Each of these activities, however, affects both jurisdictions and produces a clear need for coordination and joint administration. To That end, the City and the County agree to the following procedures for administration of land use regulations: A. Zoning Regulation 1. Zoning regulation for all unincorporated territory shall remain under the authority of . the Dubuque County Zoning Ordinance and the provisions of the Code of Iowa, the enabling legislation for the County's zoning powers. Agricultural exemption shall prevail over -City or County regulations when applicable under the Code of Iowa. 2. Pursuant to the Dubuque County Zoning Ordinance, any person may request a variance to the lot area regulations of the County Zoning Ordinance or appeal the decision of any officer to the County as that decision relates to enforcement of the County Zoning Ordinance. 3. The County shall forward each request for rezoning of property within the Growth Areas specified in this Agreement to the City for review and comment. B. Subdivision Regulation 1. Subdivision of land within the Fringe Area specified in the Agreement shall be required to conform to either City Standards or County Standards in accordance with the policies specified in this Agreement. 2. Persons wishing to subdivide land within the Fringe Area specified in this Agreement shall be required to simultaneously file a subdivision application with both the City and the County. The City and the County shall coordinate the processing of the application to ensure concurrent review by both the City Zoning Advisory Commission and the County Planning and Zoning Commission. 3. Persons requesting approval of a subdivision or development within the Growth Areas specified in this Agreement shall be required to sign a Pre -Annexation . Agreement with the City and file a Petition for Annexation with the City Clerk to be held in trust until the land in question becomes contiguous to the City, unless the requirement for a pre -annexation agreement is waived by the City. 4. If no agreement has been established between the City of Dubuque and other cities with overlapping areas of review in the City of Dubuque's two-mile limit, then the city which is'closest to the boundary of the subdivision shall have authority to review the subdivision [per lowa Code Section 354.9(3)]. C. Annexation and Map Amendment 1. The City shall consider the Dubuque Comprehensive Plan and Annexation Study when evaluating requests for annexation within the Fringe Area. 2. The City shall, upon receipt, forward applications requesting annexation or severance (de -annexation) of property within. the Fringe Area specified in this • Agreement to the County for review and comment in accordance with the Code of . Iowa. 3. Upon annexation, the City shall initiate the amendment of the Fringe Area Map for extension of the two-mile extraterritorial jurisdiction subject to this Agreement. Such 10 amendment shall require the mutual concurrence of both parties in accordance with Chapter 28E, Code of Iowa. D. Waiver of Development Standards Exceptions from the Fringe Area Development Standards of this Agreement may be granted with the concurrence of both the Dubuque County Board of Supervisors and the Dubuque City Council that the exceptions are reasonable and within the general purpose and intent of the provisions for review and approval if the literal enforcement of one or more of the provisions of these Development Standards is impracticable or will exact an undue hardship because of peculiar conditions pertaining to the land in question. E. Conflict Resolution If the City and the County are in conflict over a proposed subdivision, rezoning' application, or annexation that may violate this agreement, a review committee, comprised of members of the City Council, County Board. of Supervisors and City and County staff, shall be established by the Chair of the County Board of Supervisors and the Mayor of the City of Dubuque, to negotiate a resolution prior to final action being taken by either body to subdivide, rezone, or annex property. SECTION III. Agreement Administrative Policies • A. This Agreement shall become effective upon acceptance and execution by the County and the City, and shall be in effect for five (5) years after the date of execution of this Agreement. B. This Agreement does not create any separate, legal, or administrative entity. C. No real or personal property shall be held or disposed of in connection with the administration of the Agreement. D. This Agreement shall be administered jointly by the County and the City, through • their respective Zoning Administrators. E. At any time during the term of the Agreement, either the Chair of the Dubuque County Board of Supervisors or the Mayor of the City of Dubuque may initiate review of the policies of this Agreement by contacting the other party to this Agreement. Both parties to this Agreement shall consider modifications of this Agreement, as appropriate. 11 F. This Agreement may be amended from time to time. Such amendment shall require the mutual concurrence of both parties in accordance with Chapter 28E,.Code of • Iowa. G. The City arid the County agree to conduct a review and evaluation of this agreement at least six (6) months prior to the five (5) year effective date and automatic renewal of this agreement established in Section III (H) below. H. This Agreement shall be automatically renewed unless the County or the City objects to such renewal prior to the renewal date. Termination of the Agreement may be initiated by either party upon written notice to the other party within ninety (90) days prior to the effective date of termination. • I. This Agreement shall be filed with the Secretary of the State of Iowa, and with the Dubuque County Recorder in compliance with Chapter 28E, Code of Iowa. DUBUQUE COUNTY, IOWA CITY OF DUBUQUE, IOWA 'By:' By: Chairperson, Board of Supervisors Mayor, City of Dubuque Approved by: Approved by: Dubuque County Attorney City Corporation Counsel Attest: Attest: Dubuque County Auditor City Clerk Dated this day of ,2004 Dated this _ day of ,2004 ADMINISTRATIVE PROCESS FOR FRINGE AREA POLICY AGREEMENT BETWEEN • DUBUQUE COUNTY AND THE CITY OF DUBUQUE The Dubuque County Zoning Office must use this process for: 1) Zoning Certificates ' 2) Rezoning applications 3) Subdivision Plats/Site Plans , 4). Other (Flood Plain Applications or Special Use Permits) • The Fringe Area Policy Agreement applies if a subdivision is: > In a City of Dubuque growth area within their two-mile jurisdiction, and >. Closer to the City of Dubuque than to another city with an overlapping 2 -mile jurisdiction. The Fringe Area Policy Agreement applies if a development is: • Over two acres (must have preliminary plat for entire development), and > In a City of Dubuque growth area within their two-mile jurisdiction, and • Closer to the City of Dubuque than to another city with an overlapping 2 -mile jurisdiction. Fringe Area Map designations for City of Dubuque growth areas: Blue: primary Growth Areas Green: Secondary Growth Areas Dark Green -- gravity sewer service Light Green — gravity and lift station sewer service Pink: Outside City of Dubuque growth areas Develo, ment Standards' Prima • Annexation:• City / County Standards Access Management Pre -Annexation Agreement2 Reimburse for County Roads Financial Incentives Zoning: Consider Comprehensive Plans Subdivision/Development Review: Easements for Future City Utilities Standards for New Streets Existing Private Streets Standards fpr New Developments Shared Wells Shared or Central Sewage • Erosion Control/Stormwater Mgmts Cluster Subdivisions Seconda Outside City Yes Yes • City may consider City may consider City & County Required City Stay private City May be required May be required Required N/A City or County County Yes N/A Yes N/A N/A N/A N/A N/A • City & County County Required City or County Stay private City or County Encouraged Encouraged Required Encouraged N/A County N/A County County County N/A N/A 1 Any and all Development Standards may be waived by the City and the County. 2 May be waived by the City, 3 where appropriate. 4 If cluster subdivision not utilized, limited to max lot size of 1 acre, min Front setback of 35 feet, and max front setback of 50 feet. .FRINGEAREA MAP !: .Cizypfttqzw and Dubuque County ETTA lc:LG./Civil& Arms. 1.0cSeraalivoydar/ Citiothey*:. Seatitayarawiluirau- 1— Combinei GraviEW Lift swing &gulag Stroet Srbice j ]":A.Outikle SuidyBosindaika V. D4,OEAfliMt yOt. Dulwincraty22ale Jusisdictian. Ashoyatyrimils Asbunjalk.2KEe Jarisrff orlon. Sageteetiij 7ANSagenlie ge funs' &Nan :S"..e7C034gegy.2:114ile3figriSigaiin Cediattalyttalit3 Edion Ptoposectlama,32, fra'rftzstsmat . NON ththaquamaisiTart Dec4rIgner. TS:htinemetienninut uthipthCOubuclaetao$cocpmo nlefirationSysteni.1 nriNt it b. urraLivoixliltit:Nunne.Mccity H &WM • aaapartle,putrcvseed.:tnitiakizb..enI". acriutausliwunac .oViraarian4iarilehte DACTSand Itwsupplierodo.nonvanittinhe ma.^0.c.H€uncficialthe infentileitror athicoatitinutbembh » 04/15103 •Anildrg1:411.‘irWr•linfumirrn42..,..44, Westlaw 2005 WL 1305092 (Iowa A.G.) Office of the Attorney General State of Iowa Opinion No, 05-5-1 May 13, 2005 Page 1 MUNICIPALITIES; CITIES; REAL PROPERTY: Subdivision platting. Iowa Code §§ 354.8, 354.9, 368.7, 368.19 (2005). A municipal ordinance may condition the city's approval of subdivision platting of land within the two-mile extraterritorial area around the city limits on the property owner's consent to annexation if the city's comprehensive plan shows that the city has planned for development of the land as part of the city's growth area and has the capability to extend municipal services such as water and sanitary sewer that would otherwise not be available to the subdivision. Annexation of the land prior to approval of the subdivision may be required if the land is contiguous to the city. An agreement to apply for voluntary annexation of the property in the future, when the property becomes contiguous to the city boundary, may be required if the land is not currently contiguous to the city. (Smith to Warnstadt, State Senator, 5-13-05) # 05-5-1 The Honorable Steve Warnstadt State Senator . Iowa State Capitol LOCAL Dear Senator Warnstadt: You have requested an opinion concerning the authority of a city to condition approval of a subdivision plat on the propertyowner's consent to annexation of the property. You present a series of questions that we paraphrase as fol- lows: 1. If a city ordinance prohibits approval of the subdivision of' land that may lawfully be annexed to the city based on its location, niay the city rely on the ordinance and Iowa Code section 354,9(2) to condition subdivision ap- proval on the property owner's consent to annexation? 2. If a city ordinance requires all subdivisions to have appropriate infrastructure and to be served with city -supplied water where available and the city has a policy of not providing water service. outside city limits, may the city condition approval of an extraterritorial plat on the property owner's voluntary annexation of the subdivision into the city - if the property is contiguous to the city boundary - or the property owner's agreement to voluntary annexation of the property in the future when the property becomes contiguous to the city boundary? © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 2 In answer to your questions, we opine that, pursuant to Iowa Code section 354.9, a municipal ordinance may condition the city's approval of subdivision platting of land within the two-mile extraterritorial area around the city limits on the property owner's consent to annexation if the city's comprehensive plan shows that the city bas planned for devel- opment of the land as part of the city's growth area and has the capability to extend municipal services, such as water and sanitary sewer, to the area that would otherwise not be available to the subdivision. Annexation of the land prior to approval of the subdivision may be required if the land is contiguous to the city. An agreement to apply for voluntary annexation of the property in the future, when the property becomes contiguous to the city boundary, may be required if the land is not currently contiguous to the city. BACKGROUND: PROBLEMS OF "FRINGE" DEVELOPMENT "2 Cities and their residents generally are harmed in several different ways by uncontrolled subdivision development in fiinge areas just outside the edges of city boundaries. Extension of municipal services in an orderly and efficient manner is frustrated. Rural subdivisions with inadequate streets, private wells and septic systems can be attractive to developers because they are cheaper to develop: Residents of rural subdivisions generally resist annexation to avoid higher property taxes and fees for connecting to municipal water and sewer systems, thus frustrating orderly urban growth. See: "Rethinking Municipal Annexation Powers," 24 Urban Lawyer 247, 251-4 (Spring 1992); Op. Atfy Gen. No. 98-1-1 (1998 WL 541519). Once an area of the city is developed, the cost of change becomes prohibitive, and it becomes evident that a subdivider has cast the pattern for the future community. Since urbanization of raw land at the city's edge is now the most important development area, it is here that the most significant public influence should be exerted. "Note, Subdivision Regulation in Iowa," 54Iowa L. Rev. 1121, 1122 (1969), quoted in Oakes Construction Co. v. City of Iowa City, 304 N.W.2d 797, 805 (Iowa 1981). Clearly, the problems of community development for which solutions are sought through subdivision control do not terminate at the corporate boundary of the regulating municipality. 4 Anderson's American Law of Zoning § 25.06 (411' Ed. 1997). The enabling statutes of some states, including Iowa, recognize these problems and seek to resolve them by giving municipalities authority to regulate the subdivision of land within a specified distance of corporate limits. Id. EXTRATERRITORIAL SUBDIVISION REGULATION Municipal regulation of subdivision plats is authorized by Iowa Code section 354.8 (2005). The last unnumbered paragraph of the statute authorizes a city to establish jurisdiction to review subdivisions orplats of survey outside its boundaries pursuant to section 354.9. Relevant provisions of section 354.9 include the following authorizations. A city that has adopted ordinances regulating the division of land is authorized by section 354.9 to designate, by ordinance specifically referring to section 354.9, an extraterritorial area subject to the city's review and approval. The area of extraterritorial review may not extend more than two miles from the city's boundaries. To be effective; the ordinance designating the extraterritorial review area must be filed with the county recorder and county auditor. Iowa Code § 354.9(1) (2005). `The standards and conditions applied by a city or county for review and approval of the subdivision shall be the same standards and conditions used for review and approval of subdivisions within the city limits or shall be the standards and conditions for review and approval established by agreement of the city and county pursuant to chapter 28E."Iowa Code § 354.9(2). © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 3 *3 The Iowa Supreme Court has adopted a "reasonably liberal reading" of the state statutes and city ordinances au- thorizing municipal regulation of subdivision plats, recognizing the very close relation among municipal planning, zoning and subdivision control and the importance of zoning and subdivision control for effectuating comprehensive land -use plans. Oakes, 304 N.W.2d at 806.Under the liberal approach, a platting authority has the flexibility to dis- approve plats or condition approval for reasons that are not "spelled out in so many words" in the governing statutes or ordinances. Blumenthal Investment Trusts v. City of West Des Moines, 636 N.W.2d 255, 267 (Iowa 2001). In previous opinions, we have addressed several issues relating to a city's extra -territorial regulatory authority over subdivision plats. We have advised that both a county and a city by ordinance may provide reasonable standards and conditions affecting proposed subdivisions within the city's extraterritorial jurisdiction. 1994 Iowa Op. Att'y Gen. 142 [# 94-9-4(L)] (1994 WL 601538): We have advised that, pursuant to sections 354.8 and 354.9, a city can require subdivision platting within an area of its extraterritorial jurisdiction when neither state law nor county ordinance requires such platting. Iowa Op. Att'y Gen. # 98-1-1(L) (1998 WL 541519). Finally, we have opined that municipal home rule authorizes agreements through which landowner -developers act for themselves and their successors in consenting to annexation if the land becomes adjacent to the city. Iowa Op. Att'y Gen. # 00-12-1 (2000 WL 33258480). CONDITIONING ANNEXATION CONSENT: STATUTORY AND CONSTITUTIONAL CONSIDERATIONS The question whether subdivision plat approval can be conditioned on consent to annexation requires analysis of the relationship between municipal authority to regulate extraterritorial subdivision platting and municipal authority to annex territory. The law of annexation is purely statutory. Pruss v. Cedar Rapids/Hiawatha Annexation Special Local Committee, 687 N.W.2d 275 (Iowa 2004). A state may expand or contract the territorial area of its cities with or without the consent of its citizens, unrestrained by the Unites States Constitution. Hunter v. City of Pittsburgh, 207 U.S. 161, 178-79, 28 S.Ct. 40, 52 L.Ed. 151 (1907).See Holt Civic Club v. City of Tuscaloosa, 439 U.S. 60, 71, 99 S.Ct. 383, 390, 58 L.Ed.2d 292 (1978). State constitutional provisions and statutory annexation frameworks vary among jurisdictions. Although state statutes establishing annexation methods need not include any right to vote, the statutory establishment of voting rights on annexation proposals may trigger strict judicial scrutiny of provisions in state statutes or municipal ordinances that interfere with those voting rights. In constitutional challenges against annexation statutes or municipal ordinances that condition extraterritorial services or plat approval on annexation consent, the result largely depends on the role of voting under the state's annexation statutes or the state's constitution. The interplay between state -mandated annexa- tion elections and judicial scrutiny of alternative annexation methods has been analyzed by courts in several juris- dictions. *4 In some states, a petition of a majority of voters in a territory is required for amrexation. For example, a Wisconsin annexation statute provides that"[n]o populated fringe area may become part of the city until the majority of electors and/or property owners in a particular area desire to annex."Hoepker v. City of Madison Plan Commission, 209 Wis. 2d 633, 646, 563 N.W.2d 145,150 (1997) [citations omitted]. The Wisconsin Supreme Court held in Hoepker that the City of Madison violated safeguards in Wisconsin's annexation statutes by requiring landowners to petition for an - 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 4 • nexation as a condition of obtaining approval of a subdivision plat for property adjoining the city. Hoepker, 209 Wis. 2d at 645-49, 563 N.W.2d at 150-52.The ruling in Hoepker followed an earlier decision in which the Wisconsin Su- preme Court analogized the annexation petition process to an election. Town ofFond du Lacy. City ofFond du Lac, 22 Wis.2d 533, 536-40, 126 N.W.2d 201 (1964) (invalidating annexation where annexing city obtained agreement of landlord to obtain consent of tenants and city obtained consents of residents by inducements and eviction threats). An opinion of our Supreme Court has mentioned Hoepker without any comment concerning whether the Hoepker rationale has any relevance in Iowa. Blumenthal Investment Trusts v. City of West Des Moines, 636 N.W.2d 255, 267 (Iowa 2001) (rejecting claim under 42 U.S.C. § 1983 that application of municipal subdivision platting ordinance violated developer's right to substantive due process). In evaluating whether Hoepker and Town of Fond du Lac have any relevance under Iowa law we must consider similarities and differences between the statutory annexation frameworks in Iowa, Wisconsin, and other states whose appellate courts have analyzed the Wisconsin cases. In Oregon, like Wisconsin, a "double majority" of landowners and voters in a territory must consent to annexation. In an action brought under 42 U.S.C. § 1983 by homeowners residing outside a city, a federal appellate court held a municipal ordinance violated equal protection rights under the United States Constitution by requiring the nonresi- dents to consent to annexation as a condition of a subsidy or reduction in hook-up costs for mandated sewer connec- tions. Hussey v. City ofPortland, 64 F.3d 1260 (9's Cir. 1995), cert. denied, 516 U.S. 1112, 116 S.Ct, 911,133 L.Ed.2d 843 (1996): The court considered alternative annexation methods provided by Oregon statutes, including an election or written consent of a majority of all voters registered in the territory and owners of all land in the territory, Without consent of a double majority of registered voters and landowners, Portland would have had to conduct an election to annex the territory. Further, the consent forms used by Portland stated that if the city attempted to annex the territory by election, the agreement would constitute a waiver of the right to vote and would count as a "yes" vote. 64 F.3d at 1262-63.Distinguishing decisions by federal appellate courts in other federal circuits, the court relied on the rationale of the Wisconsin Supreme Court in Town ofFond du Lac.The court ruled that because in Oregon, like Wisconsin, the annexation by petition of voters in the territory was an alternative to election, the municipal ordinance affected voting rights. 64 F.3d at 1264-65.The court relied also on Curtis v. Bd. ofSupr's of Los Angeles County, 7 Cal3d 942, 501 P,2d 537 (1972) (invalidating state statute that authorized owners of property with 51% of total assessed value to prevent an annexation election). In Hussey, the federal court concluded that the Portland ordinance severely and unreasonably interfered with the right to vote, triggering application of a strict scrutiny test that Portland conceded the ordinance could not satisfy. 64 F.3d at 1265-66. *5 Hussey was distinguished by the Court of Appeals of Oregon in an action for judicial review of a state adminis- trative order requiring the owner of a commercial business to connect to the sanitary sewer system of an adjoining city, which required consent to annexation as a condition of the sanitary sewer connection. In Jeld-Wen, Inc. v. Environ- mental Quality Comm., 162 Or. App. 100, 986 P.2d 582 (1999), the court rejected the petitioner's reliance on Hussey finding that because the petitioner was not a voter and no voters Lived on the petitioner's property the EQC policy requiring use of the centralized sewer system and annexation in order to access that system in no way infringed upon anyone's voting rights. 162 Or. App. at 110, 986 P.2d at 588. Appellate courts in Arizona have distinguished both Town of Fond du Lac and Hussey because Arizona's annexation statutes do not provide for annexation by election or by petition of resident voters in a territory. In Goodyear Farms v. © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 5 City of Avondale, 148 Ariz. 216, 714 P.2d 386 (1986), the Arizona Supreme Court rejected an equal protection challenge to Arizona's annexation statute. The Court distinguished Town of Fond du Lac, quoting from a subsequent Wisconsin appellate opinion that explained the distinction between consent of landowners and consent of voters: Ownership itself, detached from the personal benefits or detriments that accompany residency in a municipality, is more of a private right than the political right a resident may have in annexation.... The two types of interests are treated differently because they are different. Thus the political nature of annexation petitions recognized as applicable to electors in De Bauche v. Green Bay, 227 Wis. 148,153-54, 277 N.W. 147 (1938) and Fond Du Lac is not applicable to property owners. Goodyear Farms, 148 Ariz. at 220, 714 P.2d at 390, quoting Town ofMedary v. City of La Crosse, 88 Wis.2d 101, 105, 277 N.W.2d 310, 314 (Wis. App. 1979). The Goodyear Farms Court concluded, "[w]e do not believe that the Arizona annexation petition process, which is signed by property owners, would be a political right analogous to voting." Id. Hussey was subsequently distinguished by the Arizona Court of Appeals in an opinion rejecting constitutional chal- lenges to an Arizona statute giving a city the power to prohibit incorporation of any new city within its statutorily defined "urbanized area." The court explained that because the Arizona legislature had determined that the issue of municipal incorporation in defined areas would not be decided by an election at all, the process through which landowners could petition for incorporation did not "equate to an election." City of Tucson v. Pima County, 199 Ariz. 509, 517-20, 19 P.3d 650, 658-61 (Ariz. App. 2001). Both Hussey and Town of Fond du Lac were also distinguished by the Washington Supreme Court in consolidated cases involving property owner and fire district challenges to Washington statutes authorizing annexation by petition of owners of properties constituting specified percentages of the assessed value in the annexation territory. The peti- tions resulting in the challenged annexations were obtained by the cities through "outside utility agreements" by which the cities extended utility services conditioned on consent to annexation. Grant County Fire Dist. No. 5 v. City of Moses Lake, 145 Wash.2d 702, 42 P.3d 394 (2002) [Grant County 1]. Under the Washington statutory scheme con- sidered by the court, the petition method of annexation was an alternative to an election method in which a majority of residents vote to annex a particular property to a city. The court distinguished Hussey because the Oregon method for annexation by petition required a double majority of both property owners and voters in the territory to be annexed. The court also rejected the analogy between annexation by petition and voting set forth in Town of Fond du Lac, noting that courts in several jurisdictions had rejected the analogy. 145 Wash.2d 720-23, 42 P.3d 403-04.The court rejected equal protection challenges to the statutory scheme, but the majority held that it violated the privileges and immunities clause of the Washington Constitution. On rehearing, the court vacated that portion of its decision and upheld the constitutionality of the annexation statute. Grant County Fire Dist. No. 5 v. City of Moses Lake, 150 Wash.2d 791, 83 P.3d 419 (2004) [Grant County II]. *6 Iowa statutes also provide alternate methods of annexation. A city may annex territory by involuntary annexation, a process which culminates in an election. SeeIowa Code §§ 368.11 - 368.20 (2005). When an election to approve an involuntary annexation proposal is held, "registered voters of the [annexation] territory and of the city may vote, and the proposal is authorized if a majority of the total number of persons voting approves it "Iowa Code § 368.19 (em- phasis added). A city may also annex territory by voluntary annexation upon application of the owners ofthe property in the annexation territory. Iowa Code § 368.7 (2005). Territory comprising not more than twenty percent of the land area may be included in the application without the consent of the owner to avoid creating an island or to create more 02014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 6 uniform boundaries. Iowa Code § 368.7(1)(a) (2005). Iowa's annexation statutes differ from Wisconsin's and Oregon's, the two states in which courts have found a re- quirement of consent to annexation as a condition for approval of an otherwise extraterritorial subdivision to be un- constitutional. Unlike the annexation statutes in those two states, Iowa Code chapter 368 does not give a majority of electors residing in a proposed annexation territory a veto over either a voluntary or involuntary annexation. Invol- untary annexations are approved, not upon a majority vote of the electors in the territory to be annexed, but upon a majority of the total combined votes cast in the annexation territory and the city proposing annexation. Thus, electors in the proposed annexation area do not control the outcome of an election for approval of an involuntary annexation. See City of Altoona v. Sandquist, 230 N.W.2d 507, 509 (Iowa 1975) (holding that Iowa Code section 362.26 (1971), a predecessor to current Code section 368,19, was only intended to extend franchise to residents of an annexation area, not "to grant those persons a veto power over annexation"). Even in the context of voluntary annexations, consent of residents is not required under the Iowa statutes. Rather, voluntary annexations in Iowa require only consent of property owners. Because property owners, rather than resident electors, control voluntary annexation decisions, an ordinance making subdivision plat approval conditional on consent to annexation does not affect voting rights. Therefore, if challenged on constitutional equal protection or substantive due process grounds, such an ordinance would be subjected a rational basis test rather than the strict scrutiny test applied to a statute or ordinance which infringes upon voting rights. Given application of the "rational basis test" and the "reasonably liberal" construction to be given by Iowa courts to statutes and ordinances authorizing municipal subdivision regulations, we believe that a court would find that a city ordinance may condition approval of an extraterritorial subdivision plan upon the property owner's consent to an- nexation. However, we hesitate to opine that such an ordinance would be found reasonable and within the scope of authority granted by sections 354.8 and.354.9 in all circumstances. A challenge to the validity of a city's subdivision ordinances and decisions of the council acting pursuant to the ordinances are resolved by the courts based upon con- sideration of the specific teens of the ordinance, the facts and circumstances surrounding application of the ordinance, and the rationale given for the city's decision. C.f Carruthers v. Board of Supervisors, Polk County, 646 N.W.2d 867 (Iowa Ct. App. 2002) (upholding denial of subdivision plat approval based upon local board consideration facts and circumstances). Inquiry into the validity of a specific ordinance requirement is necessarily fact -based and outside the scope of our opinion process. See61 Iowa Admin. Code 1.5(13)(c). *7 However, in circumstances where the land is shown as a growth area in the city's comprehensive plan and services of the annexing city such as water or sanitary sewer are available and needed to better assure adequate infrastructure for the subdivision, we believe that an ordinance conditioning subdivision plat approval on consent to annexation to receive those services would likely be upheld as reasonable and within the scope of sections 354.8 and 354.9. We note that municipal ordinances conditioning extension of extraterritorial utility services on consent to annexation generally have been upheld in other jurisdictions in circumstances where annexation voting rights were not implicated. See, e.g., Grant County, 150 Wash.2d 791, 83 P.3 d 419 (2004) [Grant County II]; Yakima County Fire Protection Dist. No. 12 v. City ofYakima, 122 Wash. 2d 371, 858 P.2d 245 (1993); Johnson v. City of La Grande, 167 Or.App. 35, 1 P.3d 1036 (Or.App. 2000) (distinguishing Hussey);Jeld-Wen, Inc. v. Environmental Quality Comm., 162 Or. App. 100, 986 P.2d 582 (1999) (also distinguishing Hussey); Vine St. Comm. Prtnrshp. v. City of Maryville, 989 P.2d 1238 (Wash.App. 0.2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Page 7 2000) (invalidating retroactive enforcement of ordinance); Andres v. City of Perrysburg, 47 Ohio App.3d 51, 546 N.E.2d 1377 (1988). Your inquiry distinguishes between the situation in which land to be subdivided is contiguous to city boundaries and the situation in which land is within the extraterritorial area regulated by the city but not contiguous to the city boundary. When land proposed for subdivision is contiguous to the city annexation may be accomplished prior to approval of a subdivision plan. When the land is not contiguous annexation is not a current option. You ask whether a city may condition subdivision plat approval or the provision of city services upon the property owner signing an agreement to voluntarily annex the property in the future, when it is contiguous to the city. This office previously examined this type of agreement and concluded that - if the agreement was properly recorded so that subsequent purchasers had actual or constructive notice - it would be binding upon successor property owners. Iowa Op. Att'y Gen. # 00-12-1 (2000 WL 33258480). In light ofthe 2000 opinion and our analysis herein, we conclude that a city may require an agreement for future annexation prior to approval of a subdivision or the provision of municipal services and that the agreement, if properly recorded, would likely be enforceable against landowner parties to the agreement and subsequent purchasers of property covered by the agreement. In summary, we conclude that, pursuant to Iowa Code section 354.9, a municipal ordinance may condition the city's approval of subdivision platting of land within the two-mile extraterritorial area around the city limits on the property owner's consent to annexation if the city's comprehensive plan shows that the city has planned for development of the land as part of the city's growth area and has the capability to extend municipal services such as water and sanitary sewer that would otherwise not be available to the subdivision. Annexation of the land prior to approval of the sub- division may be required if the land is contiguous to the city. An agreement to apply for voluntary annexation of the property in the future, when the property becomes contiguous to the city boundary, may be required if the land is not currently contiguous to the city. Sincerely, *8 Michael H. Smith Assistant Attomey General 2005 WL 1305092 (Iowa A.G.) END OF DOCUMENT © 2014 Thomson Reuters. No Claim to Orig. US Gov. Works. Prepared by: Laura Carstens, City Planner Address: City Hall, 50 W. 13th St Telephone: 589-4210 Return to: Kevin Firnstahl, City Clerk Address: City Hall- 50 W. 13th St Telephone: 589-4121 ORDINANCE NO. 31-14 AN ORDINANCE AMENDING. TITLE 16 OF THE CITY OF DUBUQUE CODE OF ORDINANCES, UNIFIED DEVELOPMENT CODE, BY AMENDING ARTICLE 11-7 APPLICATION REQUIREMENTS AND REVIEW PROCESS TO ADD FRINGE AREA DEVELOPMENT STANDARDS FOR SUBDIVISIONS WITHIN TWO -MILES OF THE CITY OF DUBUQUE CORPORATE LIMITS. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. That Title 16 of the City of Dubuque Code of Ordinances, Unified Development Code Article 11-7 is hereby amended as follows: E. Fringe Area Development Standards: 1. Pre -Annexation Agreement Requirement i. New subdivisions subject to the City of Dubuque. fringe area development policy will be required to have a pre -annexation agreement as part subdivision approval by the City Council (or City Planner in the case of a Plat of Survey or Lot Split). ii. The pre -annexation agreement will be prepared with input from an in- house committee made up of the City Manager, City Attorney, City Planner, City Engineer, and/or their designees. iii. Each proposed subdivision will be reviewed in light of existing City water and sanitary sewer utility systems and future extension of those utility systems, the Comprehensive Plan and Future Land Use Map, and the Annexation Study for purposes of establishing terms of the agreement. Ordinance 31-14 Page 2 2. Waiver of Pre -Annexation Agreement i. The City Manager may waive the pre -annexation agreement upon a showing of good cause. ii. A developer may appeal to the City Council to waive the pre -annexation agreement upon a showing of good cause, if the City Manager does not grant a waiver. 3. Fringe Area Subdivision Requirements i. All subdivisions must comply with Article 16-11, Land Division, of the City of Dubuque Unified Development Code. ii. Each 'subdivision will be required to provide sufficient easements for the extension of City water and sanitary sewer utility systems to serve each individual lot within the subdivision. iii. Each major subdivision shall comply with the City of Dubuque sustainability requirements for new subdivisions, including obtaining score of forty (40) points as established in Article 16-11. iv. New streets that access City or County roadways must comply with SUDAS for sight visibility as determined by the City Engineer. v. To facilitate planned and orderly growth, developers of major subdivisions must provide a preliminary plat for the entire area anticipated to be developed as part of the subdivision. vi. Subdivisions and developments which are approved prior to annexation shall provide a mechanism for transfer of public right-of-way (ROW) ownership for County roads to the City upon annexation. vii. Private roads and streets in subdivisions and developments that are not under the County's ownership prior to annexation shall remain as private roads and streets upon annexation to the City, unless and until such time as they are brought into compliance with City standards and accepted by the City as public streets. viii. Developers shall be required to utilize stormwater management and erosion control measures, and stormwater retention/detention facilities where appropriate in accordance with applicable federal, state, county, and city laws, regulations and policies. 4. Exception of Specific Subdivision Requirements: The Zoning Advisory Commission and City Council, when acting upon an application for preliminary or final subdivision approval, has the power to grant such exceptions from the requirements of Article 16-11 for subdivision approval as may be reasonable and Ordinance 31-14 Page 3 within the general purpose and intent of the provision for subdivision review and approval of the Article, if enforcement of one (1) or more provisions of the Article are impracticable or will exact an undue hardship because of unique conditions pertaining to the land in question. Section 2. The foregoing amendment has heretofore been reviewed by the Zoning Advisory Commission of the City of Dubuque, Iowa. Section 3. This ordinance shall take . effect immediately upon publication, as provided by law. Passed, approved and adopted this 21st day of April, 2014. Roy D. Bt5I, Mayor Attest: Kevi ,S. Firnstahl, City Clerk LEGENDct�sorrrav Dubuque 11111 CITY OF DUBUQUE DUB E rio 1 Moslerpleeeon the Mississippi ,...-,,.n, L { OTHER GITIES 2 -MILE EXTRA TERRITORIAL. JURISDICTION (ETJ) : DUBUQUE ,,' 2 -MILE EXTRA TERRITORIAL JURISDICTION (ETJ) : OTHER CITIES STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: April 11, 2014, and for which the charge is $18.30. S Pug, Subscribed to before me, a Notary Public in and for Dubuque County, Iowa, this 4 day of (tp't )2 , 20 /41 . AtA- ll Notar alic in and for Dubuque County, Iowa. • CITY OF DUBUQUE, IOWA OFFICIAL NOTICE • •NOTICE IS HEREBY GIVEN that the pubu- .que City Connell will conduct a public hear-. Ing at a meeting to commenoe at 6:30 p,m. 'on April 21, 2014, In`the Historic Federal Build- 350'West 6th Street, on the following: • Tett Amendments. • Reqpuest by the City of Dubuque to amend Section 16-11-7 of. the Unified ;Development Code to add Fringe Ara, Development. Standards. I . Request -by the CM,- ' of Dubuque to amend Section' -18-11'2 'ofr•trre( Unified DeVglopme ft .Code to referen e,IOWa ,Code 'Section 3S4,9 and Two -Mile ,Extra. Juris- dictlonal' Subdivision. Review Authority, Written comrhents re garding the above pub- lic hearings may be submitted to the City Clerks Office on br be • - fore said timeof public hearing. At said . time and place= of public hearings all interested citizens, and parties will be given an oppor- tunity to be heard for or against said actions. Copies of supporting documents for the pub- lic hearings are on file • In the 'City Clerk's Of- flce and may be vieWed during regular working hours. Any visual or hearing I Impaired persons , needing special assis- tance, or persons with special accessibility. : needs shouldcontact the City Clerk's Office at (663) 589-4100 or TTY (563) 690-6678 at. least 48 hours prior to 1 the meeting. I Kevin S.Flrnstahl, • CMC, City Clerk It 4/11 JANET K. PAPE Commission Number 199659 My Comm, Exp, 12/11/2016 STATE OF IOWA {SS: DUBUQUE COUNTY CERTIFICATION OF PUBLICATION I, Suzanne Pike, a Billing Clerk for Woodward Communications, Inc., an Iowa corporation, publisher of the Telegraph Herald,a newspaper of general circulation published in the City of Dubuque, County of Dubuque and State of Iowa; hereby certify that the attached notice was published in said newspaper on the following dates: April 25, 2014, and for which the charge is $47.30. Subscribed to before me, a Notary Public in and for Dubuque County, Iowa, this ,Jql day of , 20 /fes . 2/".) Notary Public in and for Dubuque County, Iowa. MArlY V'JJTERMEYER Comrnisso, Number 154885 My Coma. Exp. FEB. 1, 2017 OFFICIAL PUBLICATION ORDINANCE NO. 31-14 AN ORDINANCE AMENDING TITLE 16 OF THE CITY OF DU- BUQUE CODE OF OR- DINANCES, UNIFIED DEVELOPMENT CODE, BY AMENDING ARTICLE 11-1 APPLI- CATION REQUIRE- MENTS AND REVIEW PROCESS TO ADD FRINGE AREA DEVEL- OPMENT STANDARDS FOR SUBDIVISIONS WITHIN TWO -MILES OF THE CITY OF DU- BUQUE CORPORATE LIMITS. NOW, THEREFORE, BE IT ORDAINED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, 10 - .WA: Section 1. That Title 16 of the City of Dubu- que Code of Ordinan- ces, Unified Develop - merit Code Article 11-7 • is hereby amended as follows: E. Fringe Area Devel- opment Standards: 1. Pre -Annexation - Agreement Require- ment 1. New subdivisions subject to the Clty of Dubuque fringe area I development ' policy will be .required to have a pre -annexation agreement as part sub- , division approval by the City Council (or City planner in the case of a Plat of Survey or Lot Split). 11. The pre -annexation agreement will be pre pared with input from an in-house committee made up of the Clty Manager, City Attor- ney, Clty Pianner, CIty Engineer, and/or their designees. III. Each proposed subdivision will be re- viewed in light of exist- ing City water and san- itary sewer utility sys- tems and future exten- sion of those utility systems, the Compre- hensive Plan and Fu- ture Land Use Map, and the Annexation Study for purposes of establishing terms of the agreement. 2. Waiver of Pre - Annexation Agreement 1. The City Manager may waive the pre- annexation agreement upon a showing of good cause. II. A developer may appeal to the City Council to waive the pre -annexation agree- ment upon a showing of good cause, If the City Manager does not grant a waiver. • 3. Fringe Area Subdi- vision Requirements I. All subdivisions must comply with Arti- cle 16.11, Land Divi- sion, of the City of Du- buque Unified Develop- ment Code. ii. Each subdivision will be required to pro- vide sufficient ease- ments•for the exten- sion of City water and sanitary sewer utility systems to serve each individual lot within the subdivision. III. Each major subdi- vision shall comply with the City of Dubu- que sustainability re- quirements for new subdivisions, 'Including obtaining score of forty (40) points as estab- lished In Article 16-11. .Iv. New streets that access City or County roadways must comply With SUDAS for sight I visibility as determined • • by the City Engineer. v. To facilitate plan- ned and • orderly growth, developers of major subdivisions must provide a prelimi- nary plat for the entire area anticipated to be developed as part of the subdivision. vi. Subdivisions and developments which are approved prior to, annexation shall pro- vide a mechanism for transfer of public tight- '; of -way (ROW) owner- ' ship for County roads to the City upon annex- , ation. vii. Private roads and streets In subdivisions and developments that are not under the County's ownership prior to annexation shall remain as private I. roads and streets upon annexation to the City, unless and • until such time as they are brought Into compli- ance with City stand- ards and accepted by the City as public streets. viii. Developers shall be required to utilize stormwater manage- ment and erosion con- trol measures, and stormwater retention/ detention facilities where approate in accordance w i appli- cable federal state, • county, and city laws, regulations and poli- cies. 4. Exception of Specif- ic Subdivision, Require- ments: The Zoning Ad- visory Commission and City Council, when act- ing upon an application for preliminary or final subdivision approval, has the power to grant such exceptions from I 'the requirements of Ar- • title 16-11 for subdivi- sion approval as may be reasonable and within the general pur- pose and intent of the provision for subdivi- sion review and appro- val of the Article, If en- forcement of one (1) or more provisions of the Article are impractica- ble or will exact an un- due hardship because of unique conditiofls pertaining to the land in question. Section 2. The forego- i ing amendment has heretofore been re- viewed by the Zoning .Advisory. Commission of the City. of Dubuque, Iowa: • Section 3. This ordi- • nance shall take effect immediately upon pub- lication, as provided by law. Passed, approved and adopted this 21st day of April, 2014. • /s/Roy D. Buol, Mayor , Attest: /s/Kevin S. Flrnstahl, City Clerk Published officially In • the Telegraph Herald newspaper on the 25th day of April, 2014. /s/Kevin S. Firnstahl, • City Clerk ' It 4/25