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Pre-Annexation Requirement Waiver Request_Jon Luckstead Plat1/# Jon Luckstead 3642 Echo Hills Dr. Bellevue, IA 52031 April 24, 2014 Dubuque City Council 50 West 13th St. Dubuque, IA 52001 Attn: City Clerk Re: Waiver request for Dubuque City Council Meeting of May 5, 2014 Dear City Council Members: RECEIVED 14APR 28 AMIO:24 Cite Clerk's Office Dubuque, IA I would appreciate your consideration of this request to waive the requirement that I be obligated to sign an agreement for annexation as a prerequisite to plat approval. (Mulgrew Oil Company, located at Tamarack Business Park, is in need of land for their business expansion, and time is running out.) I would also appreciate a few minutes to speak. I did not have a visual with me when I spoke to you at your meeting of March 17, and subsequently failed to present a clear picture of the issue and my request. Sincerely, (c--c,4.te, 7/2 Jol 1.uckstead Cc. Kyle Kritz Mulgrew Oil Coompany esere • T: XlGAC y¢ R - 15/ 4;COCCI CDAE r.SW .'41.0G AC. _ LOT...2•SE-SW' �A RSL T41}D�..r • • `? 4 Tika3 G.77 i317,5. ()LATT (TI S1L 300 �t tl = Pati.►s II II It tt T5"%3RQ. SUB 3.w AG.. . • \\\ 1b-13s7'cooI \\: \�\ L014 r.3R0.SUb \ 4.77 44 _ \T437f Cox \\ LOT 2•..3 "1:58 A __:-7__121-AN-_OFTAMARAG.K.,..5U51NESTS PARK e CLASS B COt1r1E2CA L EN -MANCE _.�.4.4_AXRES AlrKkr5ED :.1r4asrt�a_- _PP3L:-I�Ji-�_S I SSP THREATENED HIGHWAY -rNTR4NCE CLOSURE —J9$=_Isr443.1C67 Tamarack Property Owners *LEASE BUILDINGS 1514453Q0S. OJon Luckstead —Tamarack Business Park QMark Koh nen — USA Furniture OPhil Mihalakis —Steel Mart.. (G CR) O444oWalz — Commercial Flooring OJim Mulgrew — Mulgrew Oil OJim Giese —Jim Giese Commercial Roofing . lack McCullough — McCullough Creative TAMARACK sussisiss PARR • aw.s..aw a+4.k r... 61444a4 • MIK sowa.s.. sr 73. Masterpiece on the Mississippi Dubuque band AI -America City 11111r 2007 • 2012 • 2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement DATE: April 30, 2014 Jon Luckstead submitted a Final Plat of Lot 8 and Lot D of Tamarack S.E. Subdivision that is within Tamarack Business Park along U.S. 61/151. The City's Fringe Area Development Standards require a pre -annexation agreement as part of subdivision approval for properties within the City's two-mile fringe area. The City Council may choose to grant a waiver of this requirement. On March 17, 2014, the City Council denied the first request for waiver of the pre- annexation agreement for this property. Planning Services Manager Laura Carstens recommends the City Council require the Pre -Annexation Agreement in accordance with the Fringe Area Development Standards. I concur with the recommendation and respectfully request Mayor and City Council approval. bd-t44 ,,,,, Mic ael C. Van Milligen MCVM:jh Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Laura Carstens, Planning Services Manager 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 RDINANCE NO. 31-14 AN ORDINANCE AMENDING, TITLE 16 OF THE CITY OF DUBUQUE CODE OF ORDINANCES, UNIFIED I�EVELOPiV1ENT CODE, BY AIVIENDING 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 1. 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 1611. 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 takeeffect immediately upon publication, as provided by law. Passed, approved and adopted this 21St day of April, 2014. Roy D. Bt$I, Mayor Attest: Kevi ,S. Firnstahl, City Clerk THE CITY OF Dui Masterpiece on the Mississippi Dubuque kat'Ll All -America City '1111' 2007 • 2012 • 2013 MEMORANDUM TO: Michael C. Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager SUBJECT: Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement DATE: April 29, 2014 INTRODUCTION This memo transmits supplemental materials for a second request by Jon Luckstead for a waiver of the requirement for a pre -annexation agreement for subdivision approval within the City's two-mile fringe area. DISCUSSION Enclosed is a Final Plat of Lot 8 and Lot D of Tamarack S.E. Subdivision submitted by Mr. Luckstead. The property is within Tamarack Business Park along U.S. 61/151. The submitted Final Plat subdivides an existing 30 -acre parcel, Lot C, into two new lots. Lot 8 is a 2 -acre lot that Mr. Luckstead plans to sell to Mulgrew Oil Company. Lot D is a 28 - acre lot for future development. The enclosed pre -annexation agreement applies to the existing 30 -acre parcel. The City's enclosed Fringe Area Development Standards require a pre -annexation agreement as part of subdivision approval. The City Council may grant a waiver of the requirement for a pre -annexation agreement for this property, if it chooses to do so. On March 17, 2014, the City Council approved the pre -annexation agreement, thus denying the first request for a waiver. On April 18, 2014, City staff met with Mr. Luckstead and other property owners in Tamarack Business Park to review the pre- annexation agreement and the annexation process. Mr. Luckstead again requests a waiver from the requirement for a pre -annexation agreement as part of subdivision approval. RECOMMENDATION City staff recommends that the City Council require the pre -annexation agreement. The property is adjacent to the Dubuque city limits along the U.S. 61/151 highway right-of- way. It is in a secondary growth area that can be served by gravity sanitary sewer. The property is adjacent to the Southwest Arterial Corridor. It also is in proximity to planned Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement City water and sanitary sewer extensions along the highway corridor to the Dubuque Regional Airport. REQUESTED ACTION The requested action is that the City Council require the pre -annexation agreement in accordance with the Fringe Area Development Standards. Enclosures cc: Barry Lindahl, City Attorney Maureen Quann, Assistant City Attorney Kyle Kritz, Associate Planner E VUSERS VMrettenbAWPACOUNCIL MEMOApreannexation agreement luckstead memo #2 doc 2 THE CITY OF Dui Masterpiece on the Mississippi Dubuque band AI -America City r 2007 • 2012 • 2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement DATE: March 7, 2014 Jon Luckstead is requesting a waiver of the requirement for a pre -annexation agreement for subdivision approval within the City's two-mile fringe area for property at 10496 Ironwood Drive. The property lies along U.S. Highway 61/151 within a secondary growth area in the City's two-mile fringe area. Planning Services Manager Laura Carstens is recommending the City Council require the pre -annexation agreement. The property is adjacent to the Dubuque city limits along the U.S. 61/151 Highway right-of-way. It is in a secondary growth area that can be served by gravity sanitary sewer. The property is adjacent to the Southwest Arterial Corridor. It also is in proximity to planned City water and sanitary sewer extensions along the highway corridor to the Dubuque Regional Airport. I concur with the recommendation and respectfully request Mayor and City Council approval. l. Mic ael C. Van Milligen bd-t44 , MCVM:sv Attachment cc: Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Laura Carstens, Planning Services Manager THE CITY OF Dui Masterpiece on the Mississippi MEMORANDUM Dubuque Ali-AmedcaCity 2007 • 2012 • 2013 TO: Michael C. Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager. SUBJECT: Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement DATE: March 6, 2014 INTRODUCTION This memo transmits a request by Jon Luckstead for waiver of the requirement for a pre -annexation agreement for subdivision approval within the City's two-mile fringe area. Enclosed is a Final Plat of Lot 8 and Lot D of Tamarack S.E. Subdivision submitted by Mr. Luckstead. The property is within Tamarack Business Park, 10496 Ironwood Drive. It lies along U.S. Highway 61/151 within a secondary growth area in the City's two-mile fringe. Staff emails summarizing contacts with Mr. Luckstead are enclosed. BACKGROUND Under Iowa Code, cities are authorized to establish subdivision review and approval within a two-mile extraterritorial jurisdiction or fringe area. Iowa Code requires that a city use the same standards and conditions for plats in the two-mile fringe that are used for plats in the city. CURRENT POLICY The City Council adopted the enclosed 2004 Fringe Area Development Policy to regulate subdivision review and approval in the City's two-mile extraterritorial jurisdiction. The Policy sets forth standards for primary growth areas that are accessible with existing sanitary sewer interceptors and for secondary growth areas. Secondary growth areas are divided into two categories — those that can be served with gravity sewer service, and those that can be served by a combination of gravity sewers and lift stations. In general, City standards are required for primary growth areas while similar but less restrictive standards are established for secondary growth areas. DISCUSSION As part of the review and approval of subdivision plats over two (2) acres in secondary growth areas, the Fringe Area Development Policy requires a pre -annexation Request by Jon Luckstead for Waiver of a Pre -Annexation Agreement agreement that sets forth terms and conditions by which the property owner agrees to annex into the city of Dubuque in the future. The submitted Final Plat of Lot 8 and Lot D of Tamarack S.E. Subdivision subdivides an existing parcel of 30.30 acres of land in Tamarack Business Park into two new lots; Lot 8 is a 2 -acre lot and Lot D is a 28 -acre lot for future development. The submitted plat, because it creates two (2) new lots and is in compliance with the City's Unified Development Code, can be approved by the City Planner. The City's 2004 Fringe Area Development Policy also requires a pre -annexation agreement because the subdivision is over two (2) acres within a secondary growth area. However, the property owner requests a waiver from the pre -annexation agreement requirement as part of staffs processing of the submitted Final Plat. Under the Policy, the City Council may grant a waiver of the requirement for a pre -annexation agreement for this property, if it chooses to do so. RECOMMENDATION Planning Services staff recommends that the City Council require the pre -annexation agreement. The property is adjacent to the Dubuque city limits along the U.S. 61/151 highway right-of-way. It is in a secondary growth area that can be served by gravity sanitary sewer. The property is adjacent to the Southwest Arterial Corridor. It also is in proximity to planned City water and sanitary sewer extensions along the highway corridor to the Dubuque Regional Airport. REQUESTED ACTION The requested action is that the City Council review the proposed subdivision plat and the Fringe Area Development Policy, and then determine whether the requirement for a pre -annexation agreement should be waived. Enclosures cc: Barry Lindahl, City Attorney Maureen Quann, Assistant City Attorney Kyle Kritz, Associate Planner F:\USERS\Mrettenb\WP\COUNCIL\MEMO\pre-annexation agreement luckstead memo.doc Jon Luckstead 3642 Echo Hills Dr. Bellevue, IA 52031 March 7, 2014 Dubuque City Council 50 West 13th St. Dubuque, IA 52001 Att: City Clerk Re: waiver request for Dubuque City Council Meeting of 3-17-14 Dear City Council members: RECEIVED 14 MAR 12 AM 10: 53 City Clerk s Office Dubuque, IA I would appreciate your consideration of this request to waive the requirement that I be obligated to sign an agreement for annexation as a prerequisite to plat approval. (Mulgrew Oil Company, located at Tamarack Business Park, is in need of land for their business expansion.) Sincerely, Jon Luckstead Cc: Kyle Kritz Mulgrew Oil Co. THE CITY OF DUB E MEVIORANDUM Masterpiece on the Mississippi MAUREEN A. QUANN, ESQ, tr 44 ASSISTANT CITY ATTORNEY 'i 21.40.4A '"` 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 survey or 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 properly 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) 589.43811 FAX 063) 583-10401 E1km mquann@cilyordubuque.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) 589-43811 FAX (563) 583-10401 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:lls cc: Barry Lindahl, City Attorney Laura 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) 58943811 Fax (563)583-1040/EMAIL mquann@cityofdubuque.org Prepared by, Loire Carotene. city Planner Address, Clty Hall. 60 W.1314 8t Telephone; 6$9.4210 RESOLUTION N0. 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 City of 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 mare effectively and economically . provide services for future growth and development and to protect and preserve the fringeiarea'snaturai resources and its environmentally sensitive features,•and . WHEREAS, Chapter 28E of than Code enables two or more local governments to enterinto agreements to cooperate for theirtutual advantage; and WHEREAS, the 1019 Code allows the Oily 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, tie lowi Code 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 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•cutiines 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 and 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 , 2004. Attest, 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 'CIO 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 sensilivefeatures, 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 Iowa 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 subdivisionldevelopment 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 andlor 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, andlor 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 publicfadlilles such as fire/police protection, parks, 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, a Purpose t. 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, I', Inform citizen's and developers of the parties' unified plan for development in the Fringe Area, g, Protect the 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 Cit ?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 wafer 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 retentionldetention facilities, 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 Countyfor improvements made to County roads prior to annexation based on en 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 exceed 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 tie City's criteria for affordable housing in these areas to encourage compliance with the City Standards, b. ,Zoninq 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. 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 retentionldetention 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 stonnwater management and erosion control measures, and stormwater'retentionldetention 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 annaxation, 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 shell require a preannexation 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 I) 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 Plan and Proposed Land l)se 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 ell 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, stormwatermanagement, 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. B 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 retentionldetention 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 tb 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 overtly or County regulations when applicable under the Cade 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. 13, 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 thls 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 Ci4, 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 Iowa 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 properly within. the Fringe Area spedfied 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 bbih parties in accordance with • Chapter 28E, Code of Iowa, D. Walver 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 end 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 vfith 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 aridithe County agree to conduct a review and evaluation of this agreement at least six (6) months prior to the five (5) year effective dale 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: 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 12004 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 PiatsfSite Plans 4) Other (Flood Plain Applications or Special Use Permits) The Fringe Area PolicyAgreement applies if a subdivision Is: 9 In a City of Dubuque growth area within their two-mile jurisdiction, and 9. Closer to the City of Dubuque than to another city with an overlapping 2 -mile jurisdicllon. The Fringe Area Policy Agreement applies If a development is: 9 Over two acres (must have preliminary plat for entire development), and 9 In a City of Dubuque growth area within their two-mile jurisdiction, and ' 9 Clpser 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 Oark Green gravity sewer service Light Green gravity and lift station sewer service ' Pink: Outside City of Dubuque growth areas Development Standards' Primary Annexation City J County Standards Access Management Pre -Annexation Agreement Reimburse for County Roads Financial Incentives Secondary Outside City Yes Yes City may consider City may consider Mpg: Consider Comprehensive Plans City & County Subdivision/Development Rey*: Easements for Future City Utilities Standards for New Streets Existing private Streets Standards far New Developments Shared Wells . Shared or Central Sewage • Erosion Control/Star: waterMgmt3 Required City Stay private City May be required May be required Required Cluster Subdivisions N!A City or County Yes Yes NIA NIA City & County County NIA N/A N/A NIA County Required N/A City or County County Stay private NIA City or County County Encouraged. County Encouraged County Required NIA Encouraged' N/A Any end all Development Standards may be waived by the City and the County, 2 May be waived by the City, . a Where appropriate, 4 If clustersubiNlslon not utilized, lmRedio max lel alze or acre, min front setback 44S6feat and max front setback of sofeet. lit obi 11141 + b 1401 illmlinill 16 'SS 55.5555SS5 I wgilavt 2005 WL 1305092 (Iowa A,CI) Office of the Attorney General Slate of Iowa Opinion No, 05.5.1 May 13, 2005 Page 1 MUNICIPALITIES; CITIES; REAL PROPERTY: Subdivision platting, Iowa Cade §§ 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 c..bility 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)005.54 The Honorable Steve Warnstadt State Senator Iowa State Capitol LOCAL Dear Senator Wamstadt: You have requested an opinion concealing the authority of a city to condition approval of a subdivision plat on the property owner'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, may the city rely on the ordinance and Iowa Code section 3549(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? 02014 Thomson Reuter. No Claim to Orig. US Gov. Works. Paget 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 ofland within the Iwo -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 level• 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 fringe arens 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 forconnecting to municipal water and sewer systems, thus frustrating orderly urban growth, See; "Rethinking Municipel Annexation Powers," 24 Urban Lmryer 247, 251.4 (Spring 1992); Op. At* Gen, Igo. 98.14 (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," 541owaL Rev.1121,1122 (1969), quoted in Oakes Consinwilon Co. v. City ofIowa City, 304 N,W,24 797, 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 (4a Ed, 1997). The enebling 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,ld. 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 or plats of survey outside its boundaries pursuant to section 354,9. Relevant provisions of section 354.9 include the following authorizations. Aeity that has adopted ordinances regulating the division of land is authorized by section 3549 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(I) (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.'IowaCode ¢ 354,9(2). 0 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 sthorizing 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 db. approve plats or condition approval for reasons that are nat"spelled out in so many words" in the governing statutes or ordinances. Blumenthal Investment ?rusts v. City of West Des Molnes, 636 N W U 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 [# 9444(L)1(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 roguing such platting, Iowa Op, Atfy Gen, # 98-1.1(L) (1998 WL 541519). Finally, we have opined that municipal home rule authorizes a ; ments 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 Oen, # 00.12-1(2000 WL 33258480). CONDITIONING ANWATION CONSENT STA RYAND 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, Prim 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. Hoer v. Clot of Pittsburgh, 207 US. 161,178-T9, 28 S.Ct, 40, 52 L,Ed 151(1907),See Holt Civic Club v. COI of Tuscaloosa, 439 U.S. 60, 71, 99 &Ct. 383, 390, 58 LEd.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 end judicial scrutiny of alternative annexation methods has been analyzed by courts in several juris- diction, *4 In some states, a petition of a majority of voters in a territory is required for annexation. For example, a Wisconsin annexation statute provides that"[n]o populated fringe area may become part of the city until the majority of electors andlor property owners in a particular area desire to annex."Hoepker v. City of Madison Plan Commisslon, 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• C 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 ailing in Hoepker followed an earlier decision in which the Wisconsin Su- preme Court analogized the annexation petition process to an election. Town of FondduLacy. CiryofFond 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, Blwnenthal lrrvesonent Trusts v. City of West Des Moines, 636 N,W2d 255, 267 (Iowa 2001) (rejecting claim under 42 U,S.C, § 1983 that application of municipal subdivision platting ordinance violated developer's right to sub stentive due process), In evaluating whether Hoepker and Town of Fond du Lac have any relevance under Iowa law we most 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 a Cfry of Poriland,64 Fad 1260 (9°' Cir 1995), cert. denied, 516 U.S. 1112, 116 S,Ct, 911,133 L,Ed2d 843 (1996), The court considered alternative annotation 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 en election to annex the tereltory, Further, the consent forms used by Potland slated kat 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 Fad at 1262.63.Distinguishingdecisions by federal appellate courts in other federal circuits, the court relied on the rationale of the Wisconsin Supreme Court in Town of Fond duLac.The colt 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 Fad at 1264.65.The court relied also on Curtis v, Bd of Supr's of Las Angeles County, 7 Ca13d 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 Fad at 126566, "5 Hussey was distinguished by the Cowl of Appeals of Oregon in an action for judicial review of a state adminis- trative order requiring the owner of acommercial business to cornett 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, Ina v, Emstron- menial Quailry 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 Melt 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. C 2014 Thomson Reuters. Na Claim to Orig. US Gov. Works, Page 5 City eAvondale,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 diilbrently because they are different Thus the political nature of annexation petitions recognized as applicable to electors in De&whe as Green Bay, 227 Wis. 148, 153.54,277 N.W.147 (1938) and Fond Du Lac is not applicable to properly owners. Goodyear Farms,148 Ariz at 220, 714 P.2d at 390, quoting Town of Medal' v. CO of La Crosse, 88 Wisid 101, 105, 277 N.W 2d 310, 314 (Wis. App. 1979), The Goodyear Fnrms Court concluded, " (w]e do not believe that the Arizona annexation petition process, which is signed by property °Rem, would be a political right analogous to voting"!d, Nnrsey 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," CIO, of Tucson v. Pima Coun0.1,199 Ariz. 509, 517.20, 19 Pad 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 annexationterrltory. The peli. tions resulting in the challenged annexations were obtained by the cities through"outside utility agreements" by which the cilias extended utility services conditioned on consent to annexation, Grant County Fire Dist, No. 5 v. City of Moses Lake,145 Wash2d 702, 42 Pad 394 (2002) (Grant Counry 1j, Under the Washington statutory scheme con. sidered by the court, the petition method of annexation was an alternative to an election method in which amajority of residents vote to emu a particular property to a city, The court distinguished tfrrssey 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 Pad 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. 51 C!ry of Moses Lake, 150 Washid 791, 83 P,3d 419 (2004) (Grant County 11]. *6 Iowa statutes also provide alternate methods of annexation. A city may annex territory by involuntary annexation, a process which culminates in an election. &Blom 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"lowa Code § 368,19 (em• pbasis added). A city may also annex territory by voluntary annexation upon application of rhe owners of the 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(1Ka) (2005). Iowa's annexation statutes differ from Wisconsin's and Oregon's, the two states in which courts have found a re- quitement 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 am 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.W2d 507,509 (Iowa 1975) (holding that Iowa Code section 362.26 (1971), a predecessor to current Code section 368 I9, 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 vohmtary annexations, consent of residents is not required under the Iowa statutes. Rather, voluntary annexations in Iowa require only consent of property owners. 13ecause 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 arational 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" construetian 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- •nexab% 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 spec& terms 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 Crnmry, 646 N,W2d 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). e7 However, in circumstances where the land is shown as a growth area in the city's comprehensive plan end services of the annexing city such as water or sanitary sewer are available and needed to better assure adequate infrast ucture 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 withmthe scope of sections 354,8 and 354.9. We note that municipal ordinances conditioning extension of extraterritorial utilityservics on consent to annexation generally have been upheld in other jurisdictions in circumstances where annexationvoting rights were not implicated, See, e.g,, Grant Counry,150Wash2d791,83P3d419(2004)[Grant County ll];Yakima CounryFire Protection Dist, Na 12v, City of Yakima,122 Wash, 2d 371, 858 P.2d 245 (1993); Johnson v. CO of La Grande,167 OrApp, 35,1 P,3d 1036 (Or.App. 2000) (distinguishing Hassey);Jelthiren, Ina, v, Environmental Quality Comm, 162 Or, App. 100, 986 Ptd 582 (1999) (also distinguishing Hassey); Vine St Comm. Prinrsirp, v. City of Maryville, 989 Ptd 1238 (Wash,App, 02014 Thomson Reuters. No Claim to Orig, US Gov. Works. Page 7 2000) (invalidating retroactive enforcement of ordinance); Andres v. City of Perrysburg, 47 Ohio App3d 51, 546 14,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 of the 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 landotimer parties to the agreement and subsequent purchasers of property mveredbyte 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 thetwo•mile extraterritorial Brea around the city limits on the property owner's consent to annexation if the city's comprehensive plan shows that the city hes planned for development of the land as pal 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 mortally contiguous to the city. Sincerely, *8 Michael H. Smith Assistant Attorney General 2005 WL 1305092 (Iowa A.G.) END OF DOCUMENT 02014 Thomson Reuters. Na Claim to Orig. US Gov. Warks. 8 FINAL PLAT LOT 8 AND LOT D OF TAMARACK S.E. FOURTH SUBDIVISION IN DUBUQUE COUNTY, IOWA DESCRIPTION: LOT C OF TAMARACK S.E. FOURTH SUBDIVISION, LUNG WITHIN SECRON 14, T88N, R2E, IN DUBUQUE COUNTY, IOWA GRAPHIC SCALE 0 20 c 0 400 1" 200' HAVE MAY BEEN REDUCED EGEND PROPERTY BOUNDARY --- CENTERUNE EASEMENT - ' - EASEMENT UNE ---- LOT UNE ( 1 RECORD DIMENSION R.O.W. RICHT-OF-WAY rm O 0 LOT 4 TAMAMCC OS MD =REASON • V( 94' N 00'42'30" E 264.95') CS .6'20.35 I' LOT 7-2 "' ,, Tar. 141 S 63'40'39' E 72.87 �` // '03'18 (S 61" E SECOND 5 BUBO DIWSION 7293 ') l FOUND 5/8" IRON REBAR W/ RED CAP NO. 12631 OR AS NOTED FOUND 1" IRON PIPE SET 5/8" IRON RESAR W/ ORANGE CAP N0. 20999 FOUND MAC NAIL SET MAC NAIL UNE BEARING. DISTANCE L-1 L-2 L-3 S 40'2726" W (8 43'03'54' W N 6337'33" W S 633733" E 208.30 208.30) 74.47' 78.29' LOT 4 /7. CURVE DELTA RADIUS LENGTH CHORD HEARING C-1 0-2 C-3 0-4 14'05'00" (1 4'04'59' 2816'22" (2816'24" 2816'22• (2616'24" 104'04'59' (104'04'59" 200.00' 49.16' 49.04' N5635'04"W 200.00' 49.16' 49.04' 55.3"58'34'E) 200.00' 98.69' 97.69' S7'45'44'E 200.00' 98.69' 97.69' 575'09'17"E) 200.00' 98.69' 97.69' 577'45'44"E 200.00' 98.69' 97.69' S75'0917"E) 200.00' 36332' 315.38' S1135'04"E 200.00' 363.32' 315.38' 50858'36"E) fiZo \ Dc• N 4932'34" IX 13450' (N 46'56'06"W 134.50') N 01'5540" W 1 .2' (N 00'42'30' E 1328.77) 400.00' (400.00') ) 35356' (353.77) - •N88'06'ost 102.61' " :{1 .M12 N228 vv. ' (86917'30"E 102.67) IoiNlww d. • m • / 5633733'6 11 109i'�5'E (561 Cs zs100.64') �? 25:5><27... 11 CS> „N W 120'00' • 1, 0p, -//:\5633733'E 164.20' ti (56191'OS"E 164.205 /: LOT 5 TAMARACK -,,,SE FOURIN sueorwsrav`• LOT 2 `QC SS Mali WAY FASEMFMFW "l O R0s0 PLIRI+OA: W• s LOT D (FUTURE DEVELOPMENT) • `• - =JO ACRES ARCES NET m 2544 ACRES LOT 3 LOT7 CA fg Fq OSOa • (es S 402726" 246.14. 7125 (8 43'03'54"w '70.7 246.14') PREPARED@7 S 5529.38" W 13491' \ (6 58'06'06" W 134.91Q5 21'40'22" W 142.87' (5 2416.50' W 142.87) MEREST CERTIFY THAT TEES LMO SVRVEYWO DOCUMENT WAS AND THE IMAM) SURVEY' WOW WAS PERFORMED 51 ME OR 06280 MY DIRECT PERSONAL 22780V90N AND TEAT 1 AM A DULY LICENSED LN10 SURVEYOR UNDER THE LAWS OF 111E STATE OF IOWA VW, (2/3L,---4/472 -(a (3 DATE (1ELTLR N0, 20089 MY LICENSE RENEWAL DATE 1512.00/2012 P4Q:5 0R RCI.. tl\TAED 0V TN5 VJtL SHEET 1 h SLEET 2 5 0205'50 E 842. YELLOW CAP #4850 5T50'21' E 326.79' (5 5513'53' E TOTAL AREA SURVEYED. 30.30 AC. , 326.79') PROPRIETOR: JON D. LUCKSTEAD ♦♦ SURVEYED FOR: MULGREW DATE OF SURVEYL N0VM52013 COPY 11‘Al (5 0030'31 Aar 1-2 xF/4 56 Et WOOL r2£ 840.84') �$ SURVEY IS SUBJECT TO EASEMENTS, FRONTAGE ROAD RESERVATIONS PER INSTRUMENT NO. 3743-81, RESTRICTCNS AND RIGHTS -OF WAY OF RECORD MD NOT OF RECORD. IANOTOPeilial OtROME 23DW561001110140 ..Am„A."No w" rm0Amm, oommmm ,> awom 0 JJ0 DAIS 11-20'12 pLA NO. 41-M-13 CLC mft01. ew,13/25 00{657 170 2 00 Sheet 2 oft SURVEYOR'S CERTIFICATE. I, Jeffrey J. Brandt, a Duly Licensed Land Surveyor in the State of Iowa, do hereby certify that the following real estate was surveyed and platted by me or under my direct personal supervision, To Nit: Lot C of Tamarack SE. Fourth Subdivision, lying within Section 19, Township 88 North, Range 2 East of the 5th Principal Meridian, Dubuque County Iowa. This survey was performed for the purpose of subdividing and platting said real estate henceforth to be known as Lot 8 and Lot D of Tamaraetr 5.E. Fourth Subdivision in Dubuque County, Iowa. Containing 3030 acres, more or less, and subject to easements, reservations, restrictions, and rights-of- way of record and not of record, the plat of which is attached hereto and made a part of this certificate, OWNER'S CONSENT Dubuque, Iowa ,20 The foregoing plat of Lot 8 and Lot D of Tamarack S.F. Fourth Subdivision in Dubuque County, Iowa is made with the free consent and in accordance with the desires of the undersigned owner and proprietor of said real estate. State of Iowa ) ss: County of Dubuque ) 1 tiOZ'9Z drS setidx3 unissIwwoo bpi 26600[ mum unissiwwoo eMot • teas IQIIeIOit 13111830 M38ONV 411380 • On this 26(t day of beaem4ef' , A.D. 2013, before me, a Notary Public in and for said state, personally appeared Non Lock Slead to the known to be the persons named in and who executed the foregoing instrument, and acknowledged that they executed the same as their voluntary act and deed. (3 _tat 3,22wCa Notary Public in the State of Iowa My Commission Expires �S QST .s Zot9 CITY OF DUBUQUE PLANNING SERVICES Dubuque, Iowa 20 The foregoing Plat of Lot 8 and Lot D of Tnmmnck S.E. Fourth Subdivision in Dubuque County, Iowa and is within the two mile jurisdiction of the City of Dubuque, as defined under Section 354 of the Code of Iowa, has been reviewed by the City Plattner, (or designee) of the City of Dubuque in accordance with Title 16 of the City of Dubuque Code of Ordinances Chapter 11, Unified Development Code and said approval has been endorsed herein on the date first written above. Laura Carstens, City Planner City of Dubuque, Iowa CITY ZONING COMMISSION Dubuque, Iowa ,20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa, is hereby approved by the City of Dubuque Zoning Commission and approval of said plat by the City Council of the City of Dubuque, Iowa, is hereby recommended. Chairman, Dubuque Zoning Commission CITY COUNCIL Dubuque, Iowa 20 Tine undersigned, Mayor and Cterk of the City of Dubuque, Iowa, do hereby certify that the foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa, has been filed in the office of the Clerk of the City of Dubuque, and that by Resolution No. the Dubuque City Council approved said plat. Roy D. Boot Mayor of the City of Dubuque Kevin Fimstahl Clerk of the City of Dubuque COUNTY AUDITOR Dubuque, Iowa , 20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa was entered of record in the office of the Dubuque County Auditor this day of ,2013. We approve of the subdivision namo or title to be recorded. Denise M. Dolan County Auditor of Dubuque, Iowa COUNTY ASSESSOR Dubuque, Iowa 20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa was entered of record in the office of the Dubuque County Assessor this day of 20I3. David S. Kubik Dubuque County Assessor COUNTY ENGINEER Dubuque, lowa , 20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision In Dubuque County, Iowa has been reviewed for compliance with current Dubuque County Platting and Subdivision regulations and has found said plat to be acceptable. Bret Wilkinson Dubuque County Engineer DUBUQUE COUNTY BOARD QF HEALTH Dubuque, Iowa , 20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa is hereby approved by the Dubuque County Board of Health and approval of said plat by the Dubuque County Board of Supervisors is hereby recommended Dubuque County Board of Health Chairperson PLATS OFFICER Dubuque, Iowa 20 I, the undersigned, Anna M. O'Shea, Dubuque County Plats Officer, have reviewed and examined the foregoing plat of Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, lowa for compliance with the Dubuque County Platting and Subdivision regulations and have found said plat to be acceptable. Anna M. O'Shea Dubuque County Plats Officer COUNTY TREASURER Dubuque, Iowa 20 I, the undersigned, Erie Stlerman, Treasurer of Dubuque County, Iowa, do hereby certify that all taxes levied against Lot C o f Tamarack S.E. Fourth Subdivision, lying within Section 14, Township 88 North, Range 2 East of the 5 Principal Meridian, Dubuque County Iowa have been paid and said real estate is free and clear of all taxes as of this date. Eric Sherman Dubuque County Treasurer COUNTY PLANNING AND ZONING COMMISSION Dubuque, Iowa , 20 The foregoing plat of Lot 8 and Lot D of Tamarack S.E, Fourth Subdivision in Dubuque County, Iowa is hereby approved by the Dubuque County Planning and Zoning Commission and approval of said plat by the County Board of Supervisors is hereby recommended. Dubuque, lowa Chairperson COUNTY BOARD OF SUPERVISORS 20 The Dubuque County Board of Supervisors of the County of Dubuque, Iowa, do hereby certify that the foregoing plat in the County of Dubuque, Iowa has been filed in the office of the County Board of Supervisors, and that by Resolution No. , the Dubuque County Board of Supervisors have reviewed and approved said plat. ATTEST: Chairperson Denise M. Dolan Dubuque County Auditor RECORDER'S CERTIFICATE Dubuque, Iowa 20 The foregoing plat of Lot 8 and Lot 1) of Tamarack SS. Fourth Subdivision in Dubuque County, Iowa has been reviewed by the Dubuque County Recorder. KathyFlynn Thurlow Dubuque County Recorder ATTORNEY'S OPINION Dubuque, Iowa ,20 TO WHOM IT MAY CONCERN This will certify that I have examined the abstract of title covering according to the plats thereof covering the period from government entry to certified on that date by and find that said abstract shows good and merchantable titlo to said real estate in free and clear of all liens and encumbrances and shows taxes paid including taxes for the year Attorney At Law Page 1 of 1 Kyle Kritz - Meeting with Jon Luckstead regarding Pre -Annexation Agreement From: Kyle Kritz To: Carstens, Laura; Green, Bob; Lindahl, Barry; Psihoyos, Gus; Quann, M... Date: 02/21/2014 3:13 PM Subject: Meeting with Jon Luckstead regarding Pre -Annexation Agreement Attachments: Jon's Plat.pdf All, Maureen and I met with Jon Luckstead owner of Tamarack Business Park regarding the pre -annexation agreement he needs to sign as part of approving the plat he recently submitted for approval (attached). Jon had questions regarding costs (who pays for what) associated with connecting the Business park to water and sanitary sewer once its extended out to the Airport. Jon presented one scenario where he asked if he could connect to the City's water main, install a back flow preventor and then connect individual buildings in the business park by running separate laterals? Jon indicated that the County will not let him build any additional buildings without doing a central water system and hiring system operator to manage it. Jon's position appears to be if he can't get access to City water at a reasonable price, he is not inclined toward signing the pre -annexation agreement and would appeal to the City Council to waive the requirement. It appears we should meet to determine the best way to respond to Jon. Thanks, Kyle file:///C:/Users/kkritz/AppData/Local/Temp/XPgrpwise/53076D 1 ADBQ_DODBQ_PO10... 03/03/2014 Page 1 of 1 Kyle Kritz - Phone CaII from Jon Luckstead - Pre -Annexation Agreement From: Kyle Kritz To: Carstens, Laura; Green, Bob; Lindahl, Barry; Psihoyos, Gus; Quann, M... Date: 02/24/2014 10:15 AM Subject: Phone Call from Jon Luckstead - Pre -Annexation Agreement Attachments: Jon's Plat.pdf All, Jon Luckstead called this morning and indicated he wanted to go the City Council and request waiving of the requirement to sign a pre -annexation agreement as part of getting his plat approved. Jon is not comfortable with agreeing to annex just a portion of the property in his development and doesn't feel there is enough incentive to sign an agreement. I mentioned that we would be meeting in late March to discuss the connection of his development to city water and sewer, but Jon didn't seem to be interested in waiting. The plat submitted by Jon splits an existing lot and both new lots have frontage and meet the city's minimum lot area requirements so the Laura can sign off as City Planner. I assume Jon should contact the City Clerk and ask to be on the March 17th Council meeting and to address the Council regarding waiving of the pre -annexation agreement. If successful, Laura could then sign the plat. I have attached the plat to this e-mail. Please advise if this is the proper procedure. Thanks for your assistance, Kyle file:///C:/Users/kkritz/AppData/Local/Temp/XPgrpwise/530B 1 BC5DBQ_DODBQ_PO10... 03/03/2014 TAMARACK BUSINESS PARK CITY LIMITS Prepared by: Laura Carstens City Planner Address: City Hall, 50 W. 13`h St. Telephone: 589-4210 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 City of 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 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 Iowa Code enables two or more local governments to enter into agreements to cooperate for then -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 and 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: eanne F. Schneider City Clerk , 2004. 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 Iowa 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: 2 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, parks, 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 Tots 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. Protect the 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 develdpers 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 preannexation 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 preannexation agreement with the City of Dubuque has been filed; and b) If based on the lifecycle of the roadway, not to exceed 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. &Ding. 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. 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 7 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 Pian and Future Land Use Map as well as the City's Comprehensive Plan 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 swaies, 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 Tess 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 ll. 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. 9 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 Iowa 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 moth parties in accordance with Chapter 28E, Code of lowa. 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 and 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 a 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: 9 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 Development Standards' Primary 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 for New Developments Shared Wells Shared or Central Sewage Erosion Control/Stormwater MgmtJ Cluster Subdivisions Secondary 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 N/A City or County County Stay private N/A City or County County Encouraged County Encouraged County Required N/A Encouraged" N/A 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 duster subdivision not utilized, limited to max lot size of 1 acre, min front setback of 55 feet, and max front setback of 50 feet. FRINGE AREA MAP.: City of Dubuque and Dubuque County Legend - Primary Gn nuthAreas _Secondary Growth Areas- Gravity Suntan,/ Sewer Service Secondanj Growth Areas- = Combined Gravity/Lift Station Sanitary Sewer Service ® Outside Study Boundaries S Dubuque City Limits V\ Dubuque City 2 Mlle Jurisdiction Asbury City Limits Asbury City 2 Mile Jurisdiction • Sagevi le City Limits \A Sageoille City 2 Mile Jurisdiction V\ Peosta City Limits • Peosta City 2 Miles Jurisdiction V\ Centralia City Limits v\ Centralia City 2 Mite Jurisdiction Proposed Iowa 32 Y ` Proposed Connection to Northwest Arterial V Dubuque Regiorzal Airport D•A•0•I•B s�t�i �wwsYwM /Nd i 'flux nM:usxxsMe ww w+rmluMd using rho 1:hrbuctoo Area Gonyouphk: Information Syuo (DICUS). It is aorlomourl shy while tlx: CMy or Dubuque and partielputitg aRarJes uta$od rho meso corrom and ""carie htlimxulm awlt:Mrlo, DAGIS and its %umbar do HO( warrent the uo vney or currency of dr inforruasion Alf dau,Ited 111.7611. 04/15/03 AMerne 1. f lulura load use Ramo anus . nn ..n.r Prepared by Maureen A. Quann, 300 Main Street, Suite 330 Dubuque, IA 52001 563-589-4381 PRE -ANNEXATION AGREEMENT BETWEEN THE CITY OF DUBUQUE, IOWA AND This Pre -Annexation Agreement (the "Agreement"), dated for reference purposes the day of , 2014, is made and entered into by and between the City of Dubuque, Iowa ("City") and Jon D. Luckstead ("Owner"). Whereas, Owner is the legal owner of real estate legally described as: Lot C of Tamarack S.E. Fourth Subdivision, Tying with Section 14, Township 88 North, Range 2 East of the 5th Principal Meridian, Dubuque County Iowa, and shown in Exhibit A attached hereto and incorporated herein by reference (the "Real Estate"); and Whereas, as of the date of this Agreement, the Real Estate is not contiguous to the corporate city limits of the city of Dubuque, but is located within two (2) miles of the corporate city limits of the city of Dubuque and constitutes territory which may be annexed by City as provided in Iowa Code Chapter 368; and Whereas, owner desires to have the Real Estate annexed by City upon certain terms and conditions as hereinafter set forth; and Whereas, notice of the proposed annexation shall be given to the parties legally required to be notified pursuant to Chapter 368 of the Iowa Code at the time the Real Estate becomes contiguous to City; and Whereas, after execution of this Agreement, Owner plans to divide and replat the Real Estate as: Lot 8 and Lot D of Tamarack S.E. Fourth Subdivision in Dubuque County, Iowa; and Whereas, the City Council, after due and careful consideration, has concluded that the annexation of the Real Estate by City on the terms and conditions hereinafter set forth would further the growth of City, would provide for the harmonious development of City, would enable City to control the development of the area and would serve the best interests of City. NOW THEREFORE, IN CONSIDERATION OF THE PROMISES AND THE MUTUAL COVENANTS AND AGREEMENTS HEREIN CONTAINED, IT IS HEREBY AGREED AS FOLLOWS: SECTION 1. AGREEMENT PURSUANT TO IOWA CODE CHAPTER 368. This Agreement is made pursuant to and in accordance with the provisions of Iowa Code Chapter 368. The foregoing preambles and recitations are made a part of this Agreement. SECTION 2. TERM. The term of this Agreement is from the day of , 2014 until the annexation of the Real Estate to City is final. SECTION 3. PETITION FOR ANNEXATION. Owner, upon execution of this Agreement, will submit to the City Clerk a Petition for Annexation of the Real Estate by City, in the form provided in Exhibit B. The City Clerk will file the Petition, submit it to the City Council for consideration at such time and under such circumstances as the City Council deems appropriate, and comply with the requirements of Iowa Code Chapter 368. Pursuant to Iowa Code § 368.7(e), upon execution of this Agreement, Owner hereby waives the right to withdraw or rescind the Petition and hereby waives the right to withdraw its consent to the Petition and waives its right to object to annexation. SECTION 4. ADMINISTRATIVE COSTS. City agrees to pay the administrative costs associated with the annexation of the Real Estate, which includes filing and recording costs. SECTION 5. TRANSITION OF CITY SHARE OF PROPERTY TAXES. City agrees that the resolution approving the annexation application shall provide for the transition for the imposition of City taxes against the Real Estate. The Real Estate shall be entitled i__ following mail tion i.-....... ♦i.... for City faxes f period of ten entltieu to 1FIC IUIWWiiiy partial exemption from taxation for City Laxer for a peiio (10) years following the final order of the City Development Board, if such annexation requires approval by the City Development Board, after the exhaustion of any and all appeals from the action of the Board by any person or the expiration of the time within which such appeals may be brought, approving the voluntary annexation of the property shown on Exhibit A: 1. For the first and second year, seventy-five percent (75%). 2. For the third and fourth year, sixty percent (60%). 3. For the fifth and sixth year, forty-five percent (45%). 2 4. For the seventh and eighth year, thirty percent (30%). 5. For the ninth and tenth year, fifteen percent (15%). SECTION 6. CITY WATER SERVICES. 6.1 Upon annexation, Owner, Owner's heirs, successors and assigns, including but not limited to, the future owners of the Real Estate will obtain City water services to the Real Estate. 6.2 If Owner, Owner's heirs, successors and assigns, including but not limited to, the future owners of the Real Estate, obtain water services from a rural water provider prior to annexation, Owner must use City water services to provide water to the property upon annexation. For provision of such future City water services to the Real Estate, the Owner, the Owner's heirs, successors and assigns, including but not limited to, the future owners of the Real Estate, shall be fully bound, jointly and severally, to pay the City the sum of any and all amounts the City is required to pay as compensation to the rural water service provider for losses resulting from annexation of all or any part of the Real Estate by the City and such amounts as the City may be required or reasonably agrees to pay the rural water service provider as a settlement for resolution of any claims, disputes, objections, protests or litigation related to or arising out of the City providing water service to all or any part of the Real Estate, following annexation of the Real Estate to the City. SECTION 7. OTHER CITY SERVICES. 7.1 Upon annexation, Owner, Owner's heirs, successors and assigns, including but not limited to, the future owners of the Real Estate will for provision of future construction of street paving, curbs and guttering, storm sewers, water mains, sanitary sewer mains, bicycle paths, and sidewalks by means of City awarded contracts to be paid by special assessments to be levied against the Real Estate, the Owner agrees that by execution of this Agreement, Owner, the Owner's heirs, successors and assigns, including subsequent purchasers of the Real Estate, and each of them, shall pay and are bound to pay the City, the costs of the aforesaid improvements assessed to the Real Estate, by action of the governing body of the City, after notice of hearing as provided by Iowa Code Section 384.50, the provisions of Iowa Code Section 384.38 notwithstanding. SECTION 8. BINDING AGREEMENT. This Agreement shall be binding upon and inure to the benefit of the parties hereto, their heirs, successors and assignees and shall be recorded with the Real Estate and will apply to any subsequent plats and/or subdivisions of the Real Estate. SECTION 9. EFFECT OF INVALID PROVISION. If any provision of the Agreement is held invalid, such invalidity shall not affect any of the other provisions contained herein. 3 SECTION 10. DEFAULT. 10.1. Failure by Owner to substantially observe or perform any material covenant, condition, obligation or agreement on its part to be observed or performed under this Agreement constitutes an Event of Default. 10.2. Whenever any Event occurs and is continuing, City may take any one or more of the following actions after giving written notice by City to Owner of the Event of Default, but only if the Event of Default has not been cured within sixty (60) days following such notice, or if the Event of Default cannot be cured within sixty (60) days and Owner does not provide assurances to City that the Event of Default will be cured as soon as reasonably possible thereafter: (1) City may suspend any part of or all of its performance under this Agreement until it receives assurances from Owner, deemed adequate by City, that Owner will cure its default and continue its performance under this Agreement; (2) City may cancel and rescind this Agreement; (3) Owner will reimburse City for all amounts expended by City in connection with the Agreement, and City may take any action, including any legal action it deems necessary, to recover such amounts from Owner; (4) City may take any action, including legal, equitable or administrative action, which may appear necessary or desirable to collect any payments due under this Agreement or to enforce performance and observance of any obligation, agreement, or covenant under this Agreement. SECTION 11. NOTICES. Any notice to be delivered pursuant to the terms of the Agreement shall be delivered or mailed by certified mail, return receipt requested, to the respective parties at the following addresses: If to City: If to Owner: City of Dubuque City Clerk 50 West 13th Street Dubuque, Iowa 52001 Jon D. Luckstead 3642 Echo Hills Drive Bellevue, IA 52031 4 SECTION 12. COUNCIL APPROVAL. This Agreement is subject to final approval of the City of Dubuque, Iowa in its sole discretion. 5 CITY OF DUBUQUE, IOWA OWNER By: By: Roy D. Buol, Mayor Jon D. Luckstead By: ATTEST: Kevin S. Firnstahl, City Clerk On this day of , 2014, before me, a Notary Public in and for said state, personally appeared Roy D. Buol and Kevin S. Firnstahl known to me to be the person(s) named in and who executed the foregoing instrument, and acknowledged that they executed the same as their voluntary act and deed. Notary Public in the State of Iowa My Commission expires On this day of , 2014, before me, a Notary Public in and for said state personally appeared known to me to be the person(s) named in and who executed the foregoing instrument, and acknowledge that they executed the same as their voluntary act and deed. Notary Public in the State of Iowa My Commission expires 6 ATTACHMENTS EXHIBIT A: Legal Description and Plat of Annexation EXHIBIT B: Petition for Annexation 7 EXHIBIT A LEGAL DESCRIPTION Lot C of Tamarack S.E. Fourth Subdivision, lying within Section 14, Township 88 North, Range 2 East of the 5th Principal Meridian, Dubuque County Iowa PLAT 9 DATE FILED EXHIBIT B PETITION FOR ANNEXATION TO: Mayor and City Council of the City of Dubuque, Iowa Board of Supervisors, Dubuque County, Iowa The Petitioners Respectfully States Under Oath: 1. That the Petitioners are the sole owners of record of the following legally described land hereinafter to as the "Real Estate". See attached Exhibit A: Legal Description and Plat of Annexation. The Real Estate is further identified as parcel number 2. The Real Estate is not situated within the limits of any municipality, but is contiguous to the City of Dubuque, Iowa. See attached Exhibit A: Legal Description and Plat of Annexation. The Petitioners Respectfully Request: 1. That the above-described Real Estate be annexed to the City of Dubuque by resolution of the Mayor and City Council of the City of Dubuque, Iowa, pursuant to Chapter 368 of the Code of Iowa. 2. That such other action may be taken as is appropriate in the premises. We, the Petitioners, hereby state that the preceding statements and all statements made in supplementary material, and all attached documents submitted by me are true and correct. We, the Petitioners, hereby acknowledge that pursuant to Iowa Code § 368.7(e), and upon execution of the attached Pre -Annexation Agreement, Petitioners hereby waive the right to withdraw or rescind this Petition and hereby waive the right to withdraw consent to this Petition and waive the right to object to annexation. Signed on this day of , 2014. Telephone: 563- Telephone: 563 - Subscribed and sworn before me this Notary Public day of , 2014. ATTACHMENTS: EXHIBIT A: Legal Description and Plat of Annexation EXHIBIT B: Pre -Annexation Agreement 10 EXHIBIT A LEGAL DESCRIPTION AND PLAT 11 INSERT LEGAL DESCRIPTION HERE 12 INSERT PLAT HERE 13 EXHIBIT B PRE -ANNEXATION AGREEMENT 14