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Request to Address the City Council - Mitch Quade Copyright 2014 City of Dubuque Action Items # 1. ITEM TITLE: Request to Address the City Council - Mitch Quade SUMMARY: Correspondence from Mitch Quade requesting to address the City Council regarding a waiver of a pre-annexation agreement related a farm on Swiss Valley Road. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File; Council ATTACHMENTS: Description Type ❑ Quade Pre-Annexation Waiver Request Supporting Documentation ❑ Quade Pre-Annexation-Exhbit A Supporting Documentation ❑ Quade Pre-Annexation-Exhbit B Supporting Documentation ❑ Quade Pre-Annexation-Exhbit B Supporting Documentation ❑ Mitch Quade Request for Waiver of a Pre-Annexation Agreement-MVM Supporting Documentation Memo ❑ Staff Memo Staff Memo To: Mayor Buol Dubuque City Council From: Mitch Quade (910.. - CC: Kyle Kritz, Associate Planner, City of Dubuque Date: February 9, 2015 Re: Waiver Request for Pre -Annexation Agreement for. Quade Family Farm I would like to address the Mayor and City Council regarding a waiver for the City of Dubuque's Pre -Annexation Agreement, for our family farm located on Swiss Valley Road, in Dubuque County. My brother and I own a farm located on Swiss Valley Road that is approximately 330 acres. The property includes a house and several out buildings. The farm is used for agricultural purposes for raising row crops and it is our intent to continue growing row crops for the foreseeable future. At this time we have no plans for creating a sub- division on the property. RECEIVED 15 FEB!! AM 146 4&roc`s Tice Dubuque, FA Mitch Quade 509 Nordic Trail Mount Horeb, WI 53572 Phone: (608) 438-4717 A plat map is attached and is marked to show the farm property boundary and approximate distances from the City. I am in my sixties and want to do estate planning. As part of this planning my brother and I would like to split the farm into two parcels of approximately 165 acres each. One of the parcels would also hold the farmhouse and out buildings. We would like to receive a waiver from the City of Dubuque for the Pre -Annexation Agreement since we only wish to divide this property for family reasons and continue farming the land. We understand that future platting changes to the property may require review and or approval by the City of Dubuque. Thank you. Attachments: Exhibit "A" Farm Location to current City Limits Exhibit "B" Plat Map showing farm boundary Exhibit "C" Arial Map showing Tax Parcels and vegetation T -J A v N O _ a 1 F M O �jC � " m W I °u 7 \ N f J I O ILI ti I � N -'1 N I ra: 8 W N Z I X 6L14 ( 1Ip41.19 FL rye R -0071-004 4t .013.18I2-POS C u 1.091-008 eo030.34 F OOB 39.67 32I-006-00935.627 II201 YO /5/830000/ ( � mss— �z EI It -ta H N P 16.00 g N It.AG-o✓ I /5/8`/oraouz 15/8Y0003 /$/a30U0o3 aP4 38.30 .001 ---__J 20.00 \_ /S/83(�O'L 0�,,88 k .s i S.IWO r1 I /"tt✓t''�.r/" Ste' GP' 1JW$V3 I . /51 e ��05 11 .65 ,,.0� 2 t-o'C-L /5/83 Uo. _� n ° Pt.2 �. u^ 11 �t q 2-004 Pt.68.71 �c.l />18`/OU00�! I .+� P1. 15-17-300-003 1-004 V $W } 20.10 �/ 36.45 on S fc.^M z/ (r' oe ua u � aee I 11011 1519100003 _vo/ N W 20.00 s. I ° 1-006 s 1-003 X 19.I8 C �/ II K I1 13.75 -----,-- 2-002 f� 31.94 26.25 I � z0000 R 5 t/ W AE i 170 i9 �51�(2000 y i No TA•X E ✓I 3.Sol'u Y,4:r' -004 I . (J -COS -004 I O -005 2p �! 31.94 I 40.00 1/ I ate ...' •z i+ � . 5� � +. k t 4 6 4 ♦� 1. o r _ t 14Im as m s o T ^ = f Y A E i L'7 m y 0 1 THE CITY OF Dubuque UBE I erica .i Masterpiece on the Mississippi 2007-2012-2013 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Request by Mitch Quade for Waiver of a Pre-Annexation Agreement DATE: February 11, 2015 A request was received from Mitch Quade for waiver of the requirement for a pre- annexation agreement for future subdivision platting within the City's two-mile fringe area. I have declined to waive the pre-annexation agreement. Planning Services Manager Laura Carstens recommends that a pre-annexation agreement be required. I concur with the recommendation and respectfully request that the Mayor and City Council deny the appeal and require the pre-annexation agreement. �t Michael C. Van Milligen MCVM:jh Attachment cc: Mitch Quade Barry Lindahl, City Attorney Cindy Steinhauser, Assistant City Manager Teri Goodmann, Assistant City Manager Laura Carstens, Planning Services Manager THE CITY OF Dubuque kwftll L)UB3 E AII-America city 1 Masterpiece on the Mississippi 2007•2012•2013 MEMORANDUM TO: Michael C. Van Milligen, City Manager FROM: Laura Carstens, Planning Services Manager SUBJECT: Request by Mitch Quade for Waiver of a Pre-Annexation Agreement DATE: February 12, 2015 INTRODUCTION This memo responds to a request by Mitch Quade for waiver of the requirement for a pre- annexation agreement for future subdivision platting within the City's two-mile fringe area. Mr. Quade has set forth his reasons for making this request in his correspondence dated February 912015 DISCUSSION 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. Section 16-11-7 of Unified Development Code (UDC) for Land Division established Fringe Area Development Standards. New subdivisions subject to these standards are required to have a pre-annexation agreement as part of the subdivision approval by the City. The City Manager may waive the pre-annexation agreement upon a showing of good cause; the City Manager has declined to waive the pre-annexation agreement. 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. RECOMMENDATION Planning Services staff recommends that the City Council require the pre-annexation agreement in accordance with UDC Section 16-11-7. REQUESTED ACTION The requested action is that the City Council review Mr. Quade's request, and then determine whether the requirement for a pre-annexation agreement should be waived. cc: Gus Psihoyos, City Engineer Bob Green, Water Department Manager Maureen Quann, Assistant City Attorney Kyle Kritz, Associate Planner F:\USERS\Mrettenb\WP\COUNCIL\MEMO\pre-annexation agreement quade memo.doc County Zoning in Iowa: An Explanation of Chapter 335 of the Iowa Code ../6//6 '9/ hi-id7 Counties that contain, or adjoin major urban areas find. that they need t? NC7I to direct and control developinent that occurs on .the urban fringe. t< 1pLess populated counties also have con.cerns. Generally, their primary land use goal is to protect prime agricultural land. This is a top prior- i ty interest because of t.he high quality and productivity of much of Iowa's farmland, Just as it is necessary to protect the quality of prime agricultural land through the control of erosion, it is also necessary to protect .the qua.ntit:y of prime agricultural hind .through the control of development. r:the primary tool that counties .have to deal .withall of these issues is zoning. Chapter 335 of the Iowa Code delegates zoning authority to counties. This power, together with the authority that is possessed, by all Iowa. counties because of their home rule status, gives counhies broad. discretion in directing development and controlling future . growth.. Within this fram.ework, counties a:re free to choose whether or not to have zoning. Counties that adopt zoning have the freedom needed to structure their local zoning ordinances in the most suitable way to meet individual local needs • 3 3331, 335.1 "throug.h their co:mprehensive plans and their zoning ordinances, counties can control development so that schools, roads, health. :facili- ties, and, utilities keep pace with. the .needs of the population. This publication. is a resource for Iowa. county officials an.d interested citizens. The text is arranged so that the entire law, as en.a.cted by th.e Iowa Legislature, is presented. in the center columns. A discussion of each section. of the law appears in th.e outside columns, directly opposite the section being explained. IOWA STATE UNIVERSITY University Extension PM 1184 Revised January 2000 Explanation 335.1 The Iaw provides that any county in lowa may adopt zoning, but does not require that it do so. This decision is left to the discretion of the individual counties. 335.2 Farm lands and buildings are specifically exempt from most provisions of county zoning regulations, Exceptions include the restrictions placed on farms if the county adopts an agricultural land preservation ordinance (see explanation of section 335.27) and restrictions placed on land uses within flood plains. Beyond these two exceptions, no provision of county zoning can be applied to any active farming operation, 335.3 11 a county decides 10 adopt zoning, the board of supervisors may exercise any or all of the powrs that follow. These powers are applicable only in areas outside the Umits of cities and towns. Unincorporated villages are subject to county zoning regulations. The board of supervisors may regulate or restrict: 1. The height, number, and size of structures or bufld- ngstobwp|anedona|ot. 2. The percent of a lot that may be occupied by build- ings. 3. The size of yards, courts, arid other open spaces (width of side yard, depth of front or rear yards). 4. The density of populaUon. This is accornplished by regulating the minimum size of Iots. 5. The location and use of buildings, structures, and land for purposes of trade, industry, residences, or other purposes. 6. Tents, tnaUom, or portable structures for resklentiai This does not apply in any way to agricultural land or buildings. 335.4 Zoning districts of any size, shape, or number may be established within the county. Such districts fall into three general categories: residential, commercial, andinduathaiVVithineaohdi,t/int.th000notruodon. reconstruction, repair, and use of buildings, and the use of land may be governed by written regulation. The written regulations must apply equally throughout each district, but the regulations for each type of district may differ from those in another type of district. This means that residential district regulations must apply equally to all residential districts in the county, but the regulations for residential districts may differ from commercial district regulations that apply equally to all commercial districts. county or any part of the county 0 ay be divided into zoning districts. 2 4,:* IOWA STATE UNIVERSITY EXTENSION Iowa Code Chapter 305 335.1 Where applicable. The provisiors of this chapter shafl be appiicahle to any county of the sate a the oplion of the hoard of super visorso{nnyauc6zomniy. 335.2 Farms exempt. Except to the extent require6toimplenent section %35.27,noordi- nance adopted under this chapter applies to iand, farm .houses, farrn barns, farm outbuId- in.gs,uroU`crboUdiogoorstructummp,6ic6are primarily aduyted, by reason of nature and area, tor use for agricuiturai purposes, while auoaed.Bovvever,theordioaoceanuay apply to any structure, building, dam, obotru.cdm\ deposit, or excavation in or on the flood. p!ains ), of any river or stream. -7 / 335.3Powers. Subject to section 335.2, the hoard of supervisors may hy ordinance regu- late and restrict the height, number ofoboc' turos, andsize of buildings and other stroc' tucex, the percentage of lot that rnay he Occu- pied, the size of yards, courts, and. other open. ccoPie6,t6esiaeofyards,cuorts'mudotberopeu spaces, the densi.ty of population, and the lo- cation and use of buildings, structures, and land for trade, industry; residence, or other purposes, and rnay regulate, restrict, and pro- .hihit the :use [orrenid.eutial .purposes of tents, trailers, and portable or potentially portable structures. Bovvever, mu6`powersu6mU be ex- ercised only with reference to land and struc- tures located. within the county but lying out- sideofdacmpooate|imitsofanydty. 335.4 Areas and districts. For any and all of said purposes the board of smay divide the county into districts of such num- ber, shape. and area as :may be deemed best suited to carry out t,he purposes of this chap- ter; and within such d,istri,cts :it may regulate and restrict the erection, construction, recon- ... :Lich On, alteration, repair, or use of buildings, structures or land. All such regulations and restrictions shall beuniform. for each c!ass or kind. ofbuildings t6rough.onteach district, but the reguiations in. one district may dffer from those in other districts. Iowa Code Chapter 335 335.5Objectives. The regulations shall be made in accordance wi ive plan w�u of ag: er the prate,ction. of soil congestion in :the stree ..h.i..,rhway; to secilye safety from fire flood panic, and other Yers; to protect .health and the.gf2.eraJw &fare; :the overcrow:ding of land; to avoid undue con centration of poputritin73 F-517(77aittrth.e con servation ofenergy resources; to promote rea.- mmaWeaoess tosolar energy; and to facilitate the adequate provision of transportation, wa- te,i,aevveca&:,achoo|s,parkm and other pubiic requirements. However, provisions of this sec- boure!adng to the objectives of energy comer- 'tation and access to solar energy shall not be construed as voiding any Zon.i:og :regulation existing ouJuly I,l98l,o/tnrequire zooiogin. acountydhotdidnothavezouingpziorto]v}y 1,1981. Such eDo|ehnnushall bemade with ceo- fron e8 c en d wa urban deve er o mei o the character of the area of the district and lar uses, and 'ith a view 0 coneervin p the value of6HJioAa and en.coura.ging the most c��uxe of'�od U�pc/]out suchco y 1, 335.6 Public hearings.Theboard of super- visors shall provide for the mon.ner in which such regulations and restrictions and the boundaries of such districts abaU be deter- mined, established, and enforced, and from time to L|rneaoueudcd, supplemented' or changed. However, no such regulation, restric- tion, or boundary s.hall. become effective until after a public hearing in relation thereto' at pdhic6parbeoinintorataod6hzeumu6aUhave an opportunity to be heard. /\tleost 6ftoeu days' notce of tFie ti:me and piace of such. hear- inga6ol|bepub6a6edinapuperofgeoerolcir- cu\adoninaoohcouo1y.Suchnodcea]zoDaia1c the location of the district affected by narning the towrship and section, and the boundaries of such district shall be expressed in. terms of streets or roads wherever possibie. Explanation 335.5 Zoning cannot be unreasonahle or capricious and must be based on a comprehensive planning study so that reasonable regulations and districts can be developed for the community welfare. The goals of zonin0.aonu�inadbo|ovv.must be the bm�nfor the zoning8 plan.Thegoalsof zoning preserve agricultural land ---------- To consider the protection of soil from wind and -------- ter erosion. 3. To encourage efficient urban development patterns. 4. To lessen congestion in the street or highway. 5. To secure safety from fire, panic and other dangers. 6. To protect health and the general welfaro. 7. To provide adequate light and air. 8. To prevent the overcrowding of and. 9. To avoid undue concentration of population. 10. To promote the conservation of energy resources. 11. To prornote reasonable access to solar energy. 12. To facilitate the adequate provision of transporta- tion, water, oevvenage, unhoo|y, pmrkn, and other public requirements, Goals numhered 10 and 11 should not be interpreted as voiding any zoning regulation existing on July 1, 1981, or requiring zoning in any county. In preparing the regulations, due consideration must be given to: 1. The character of the area in the district and the sultability of the area for the uses proposed by zoning. Conservingof buildings. raging the most appropriate use of land throughout the county. 335.6 The board of supervisors determines where the boundaries of districts shal be located and the form and content of the regulations that app$y to each district. The board shall also provide the method whereby changcs and amendments to the regulations and district boundaries rnay be made. The board rnust hold a public hoaring before any part of the zoning regulations or zoning districts becomes effective. Any citizen, organization, or firm may attend the hearing to express views concerning the zoning ordinance. A notice must be puhlished in a newspaper of general circulation in the county stating the time and place of the hearing. The notice rnust also state the location of the affected district(s) by naming the township(s) and section(s) and, if possible, by describing the roads and streets that form boundaries of the affected area. The hearing cannot be held until at Ieast 15 days after publication of the notice. COUNTY ZONING nvIOWA Explanation 335.7 Changes in tho locaton of district boundaries or in the written regutations may be made from time to time. The responsibility for making such changes is vested in the board of supervisors. If the owners of 20 percent of the land in the area to be rezoned oppose the change, or if the owners of 20 percent of the land within 500 feet of the boundary of the proposed change oppose the change, a favorable vote of at least 60 percent of alt the members of the board of supervisors is required before the change can be made effective. Any changes in the boundarios of districts or in the written text of the zoning ordinance must be preceded by a pubHc hearing in the manner prescribed by 3356. 335.8 Although the power to adopt county zoning is vested in the board of supervisors, the board can adopt only those zoning ordinances preparedbyeznning commission, The zoning commission is appointed by the board of supervisors and may have an unlirnited membership. The zoning commission usually has five to nine members, with seven being a frequent number. The majority of the members must reside in unincorpo- rated areas of the county. nincorpo'/etedanemoofMheonun1y The commission is charged with the responsibility of preparing the ordinance and recommending the bound- erieoend|ocat|nnofvarinuadiotrictn.ThecVmmioaion must hold a public hearing on the proposed ordinance before submitting a final draft to the board of supervi- sors, who must also hold a public hearing before the ordinance may be approved. It is suggested that the members of the commission be appointed for five-year terms and that the appointments be staggered so that alt the terms do not expire the same year. After the ordinance has boen adopted, the commission should recommend to the board of supervi- oornenyamendmentn'oupp|emen\s.orohungeoto1ho ordiriance. If the board of supervisors approves, the zoning commission may contract with an outside expert or organization to assist with any work of the commission. 335.9 The board of supervisors is required to appointa zoning administrator to enforce the zoning ordinance, The appointee may be a person already employod by the county or any other governmental subdivision in the county, such as a city or township. The board is autho- rized to determine how much salary, if any, is to be established for this service. The zoning administrator usually is charged with the 4 IOWA STATE UNIVERSITY EXTENSIO Iowa Code Chapter 335 335.7 Changes and unmrndmeut . Such mgoabon�reotcdjonu and boundaries may, froin time to ti.me, be amended, supplemented, changed, modified, orrepenlod.locase, hovv' how- ever, of a protest agai:nst such change signed by the owners of twenty .percent or more ei- ther of tbc area included in such prnpoeed change, or of the area imruediatcly adjacent thereto and within five hundred feet of the boundaries thereof, such an .endrnent shali .not become effective except by: the fuvorob|evote of at least sixty percent of all of the members of the board of supervisors. The provisions of section 335.6 relative to pub}ic hearings and official notice shall. apply equally toall changes oranend mants. 335.8 Cornrnission appointed. ln orderto ail itself of the powers conferred by this chap- ter, ,tbe board of supervisors shall appoint a commission, a majority of vv6ose members shall reside within the county but outsid.e the corporate tirnits of any city, to he .knovn as the county zoning com.mission, to recommen.d the - boundaries of the various original districts, and appropriate regu atioosand restrictions to he enforced therein. Such comrnission shall, with due diiigence, prepare a preliminary report an.d boldpublic hearings thereon before submitting its final report; and the board of supervisors shall not hold its public hearings or take ac- tion until ithas received the final report pfsuch comrnission. After the adoption of such regu- latious,zeotdctiona'oodbnuodaricoofdiatdd4 the zoning cornrnission may, from tirne to tirne, zccomrnendtmthe board nfsupervisors amood' mento,anpp]oouents,c6un&cs,u,000diGcationa. 7heznning commission, with the approvai of the board of supervisors, may contract with professional consultants, regional plannin.g commissions, the Iowa development commis- sion, or the federal government, for local plan- ning 335.9 Administrative officer. The board of supervisors shall appointao administrative officer authorized to enforce the resolutions or ordinances adopted by the board. of supervi- onra. "The administrative officer may be a per- aon6vldbng other puhiic office in. the county, o.r in a city or other gove:rnrnenta.l subdivision Iowa Code Chapter 335 within the county, and the board of supervi- sors is authorized to pay to the officer compen- sation as it deems fit. 7 335.10 Board of adjustment. The board of supervisors shall provide for the appointment of aboard of adjustment, an.d. in the regulations and restrictions adopted pursuant to the au- thority of this chapter shall provide that the said board of adjustment may, in appropriate cases, and subject to appropriate conditions and safeguards, r.ni*.e special exceptions to the terms of the ordinances or regulation.s in har- mony with its general purpose and intent and in a.ccorda.nce with the general or specific rules therein contained, and provide that any prop- erty owner aggrieved by the action of the board of supervisors in the ad.option of such regula- tions and restrictions may petitio.n the said. board of adjustment direct to modify regula- tions and :restrictions as a.pplied to such prop- erty owners. 335.11 Membership of board. The board of adjustment shall consist of :five mem.bers, a majority of Vv. h o m shall reside within the county but outside the corporate limits of any city, each to be appointed for a terrn of five years, excepting that -when. the board shall first be created one member shall be appointed for a term of five years, one for a term of four years, one for a term of three, years, one for a term of two years, and one for a term of one year. Mem- bers shall be removable for cause by the ap- pointing authority upon written charges and, after public hearing. Vacancies shall be filled for the unexpiredterms of any member whose term becomes vacant. 335.12 Rules. The board shall adopt rules in accordance with the provisions of any regu- lation or ordinance adopted pursuant to this chapter. 'Meetings of the board shall be held at the call of the chair and at such other times as the board. :may determine. Such chair, or in. his or h.er absence, the acting chair, may adminis- ter oaths and compel the attendance of wit - Explanation following responsibilities: 1. To issue permits for urban uses and collect any fees that may be established for said permits. 2. To carry out administrative duties for the zoning commission and board of supervisors. 3. To enforce the ordinance and stop all violations. 4. To explain the ordinance when citizens desire information on zoning. 335.10 A board of d'ustment is necessary becauselit in__:12g.p.a.ble to yitilinaricL112atxilLfiLaLga,ses vhen hundreds o_f_p_p_Lc_els:2flaziistia.volu.e. pliipsise of the board of adjustment is to alleviate cas of hardship that are created by a literal en orcement. Iheja18-1 to pr ide a wbQa.Ib,ydIsagree with the interpretation and applica- tion of zonin 335.11 The board of supervisors appoints members to the board of adjustment as provided in this section. The terms of the members are staggered so that only one term may expire in any given year. This provides a continuity to the board of adjustment. The board of supervisors may also remove members for good reason, but these charges must be in writing and a public hearing held. Any board of adjustment position that becomes vacant shall he filled by the board of supervisors' appointee for the rest of the term of the original appointment. 335.12 Because cases heard by the board of adjust- ment may be appealed to the civil courts, it is essential that complete records of all proceedings be kept. The rules of procedure must be adopted and followed, and all evidence must be carefully documented. The vote of each member in each case must be recorded. These records must be filed immediately in the office of the board of adjustment. COUNTY ZONING IN TOW Explanation 335.13 The right of appeal is unlimited. However, the board frequently receives appeals over which it has no jurisdiction. When an appeal is made to the board, all records involving the case must be transferred to the board from the office of the zoning administrator. The appellant must state in the appeal on what grounds the appeal is made. The board shall establish the limit, such as 30 days, within which an appeal must be filed. 335.14 When an appeal is filed with the board, no further action may be taken in the proceedings until the board has rendered a decision. if, however, waiting for a decision from the board might be perilous to life or property, corrective action may be taken unless restrained by an order from the board or a court of record, 335.15 The board of adjustment has three basic powers as outlined in this section, These powers are as follows: 1. If a citizen feels there is an error in the action of the enforcing officer, a decision may be requested from the board of adjustment. The board may decide against the applicant, in favor of the applicant, or may modify the decision of the enforcing officer. The board's decision is final. 2. The zoning ordinance may state that certain excep- tions to the ordinance may be granted by the board. An 6 • IOWA STATE UNIVERSITY EXTENSION Iowa Code Chapter 335 nesses. All meetings of the board shali be open to the public. 'the board shall keep minutes of its proceedings, showing the vote of each member upon each question, or if absent or failing to vote, indicating such fact, and. shall keep records of its examinations and other of- ficial actions, all of which shall be immediately filed in. the office of the board and shall be a public record. 335.13 Appeals to board. Appeals to the board of adjustme.nt may be taken by any per- son aggrieved or by any officer, department, board, or bureau of the county affected by any decision of the administrative officer. Such ap- peal sh.allbe taken within a reasonable time, as provided by the rules of the board of adjust- ment, .by filing with. the officer from whom, the appeal is taken and with the board of adjust- ment a notice of appeal specifyin.g .the ground.s thereof. The officer from. whom. the appeal. is taken shall forthwith transmit to the board of adju.strnent all the papers constitutin.g the record upon. which the action appealed from was taken. 335.14 Stay of proceedings. An appeal stays all proceedings in. furtherance of the ac- tion appealed from, unless the officer .frorn whom the appeal. :is taken. certifies to the board, of adjustment after the notice of appeal shall have been, filed with him that, for any reason of facts stated in the certificate, a stay would, in. his opinion., cause :imminent peril to life or property. In such case proceedings shall not be stayed otherwise th.an by a restraining order which may be granted by the board of adjust- ment or by a court of record on application on. notice to the officer from whom the appeal is taken and on due cau.se shown. 335.15 Powers of board. The board of ad- justm.ent shall have the following powers: 1. 'Tb hear and decide appeals where it is alleged there is error in any order, requirement, decision, or determination made .by an. administrative official in the enforcement of this ch.apter or of any ordinance adopted. pur- suant thereto. 2. To hear and decide speci.ai exceptions to the terms of th.e ordinance upon. which such lowa Code Chapter 335 board is required. to pa.ssnnder su.ch 3. To authorize upon appeal, :in specific cases, such variance from the terms of the or- dinance as will :not be contrary to the public interest, where owing to upeciol conditions a literal enforcement nfthe provisions ofthe or- dinance will result: in unnecessary 6ards6ip' andonthuttbeapirito[theozdnanceo6ollbe observed and. substantial justice dune. 335.16 T)ecision. hi exercising the above rnentionecl powers such board may, in co:nfor- mity withthe provisions of this chapter, reverse ora88cm,wholly orpazdy,ormay modify the order, require.rnent, decision, or determ,ination appealed from audmay make such order, rc' qoirecue,`tdecioioo,ordeierroiootioomnoug6t to he macle, andto that end shall have all the powers of the officer from whom the ap- peal is taken. 335.17 Vote required. Th.e concurring vote of three members of the board. �.aUbeneces- sary turever e any order, requirethentded' sinn, ordetermivabcmofan7aocbadministra.- dveofGciol, or to decide in favor of the appli- cant on any matter upon which it is required ppli'contooauymutteruponw6i«hitiurcgnired to pass under any such ordinance or to affect any var.iation in such ordinance, 335.18 Petition to court. Any ]erson or persons jointly or severally aggrieved by any decision of the board of adjustmentunder the provisions of this chapter, or any taxpaycr, or any officer, departme:nt, boa:rd, or bureau ofthe county may present to a court of record a peti- tion duly verified, setting forth that such d.eci- sioniaU|eguJinwho|eorinpartape,ifyingi6o grounds of the illegahty Such petition shail. he prescnted to the court within 30 days after the filing of the decsion, n the office of the hoa:rd. 335J9Review 6vcourt. Upon the presen- tatkmofsuchpetitimn., the court :may allow u ad - Explanation example of such an exception is the location of a buitding or prernises for use byepublic service corpo- ration such as a water, gas, or power company when orpo'nydonsuohasawato[gee.orpowe/onmpanywhml the board believes it to be necessary for the public welfare. 3. If unusual conditions or circumstances cause a hardship when the provisions of zoning are applied, the board is permitted to vary the law so that a reasonable use of the property is allowed, Such conditions or circumstances might result from extreme topography or the shape of the property. For example, if zoning requires that a building be set back 50 feet from the stn*et, but such a requirement would place the building in a ravine, the board may reduce the requirement so that a reasonable building site is available on the lot. 335.16 The board of adjustment has fufl and final authority in its decisions. The only recourse from a decision of the board is through the courts. Decisions of the board of adjustment do ot require approval of the board of supervisors. The board of adjustment is separate and distinct from the zoning commission and should not be confused with it, In rendering a decision, the board may approve the request, deny it, or modify it. 335.17 The vote of at least three members of the board is required to reach a decision. This means that if only three of the five members of the board are present, the favorable vote of alt three is required to approve an appeal, 335.18 Any direement with a decision of the board may be appealed to the civil courts. A petition to the court must be filed within 30 days after the decision of the board. This petition shall declare that the decision of the board was iliegal and shall specify the grounds on which the decision was found to be iliegal. If a petition is not filed within 30 days, the courts have no authority to hear the case and the board's decision shall stand. 335.19 Upon the filing of a petition by ari aggrieved party, the court may require the board of adjustment to forward all records pertaining to the case to the court COUNTY ZONING IN IOWA • 7 Explanation for review. The appellant's case must be presented within 10 days, but this period may be extended by the court. Such an appeal shall not act as a stay on pro- ceedings based on the decision of the board. The court may grant a staying order, however, if the appellant requests and can show adequate cause for ssuing the restraining order. 335.20 The board of adjustment is not required to forward to the court its orlginal record of the appeai but must submit certified or sworn copies. These copies of the record must contain all facts and evidence pertain- ing to the case and evidence showing the grounds upon which the decision was based, 335.21 the court's hearing shall be considered a new hearing. The court may require tesUmony or may appoint a referee to take evidence. The referee shall report the finding of fact to the court and any conclu- sions of the aw which may be established by the referee. Such facand conclusions shall be made a part of the court proceedings. The court may reverse, approve, or modify the board's decision. No court costs may be assessed against the board unless it is apparent that the board acted with nwg|ignnce, in bad faith, or with malice in rendering its decision. 335.22 A petition of appeaconcerning a decision of the board shall have priority over aD other civiI actions and proceedings before the courts. 335.23 Power is granted to the board of suto stop, prevert, or correcviolations of the zoning ordinance. The supervisors may take any appropriate action including prosecution against any violators of the ordinance. 8 4 IowA STATE UNIVERSITY EXTENSION Iowa Code Chapter 335 justment to review such decision. ot the board of adju.stment and shall prescribe therein the time within which a return thereto must be onodoandaarvcdopooH6erex]hur'sattorncy, 'vhich sh.ail not be Iess than ten days and niay be extended by the court. 1he allowance of the writ shail not stay proceedings upon the deci- swnoppeu|edfrooz'butL6ocoortmay,onap- plication, on notice (nt6e6oard' and ondue caoaeshovvn, gzan1arestrainin&orJoc 3352ORecord advanced. The board ofad- justment obaD not be required Lo return the original :papers acted upofl by it hut it shali be sufficient to return uerd6ed or swum copies thereof or c){ such portions thereof as may be called for bysuch writ, The return shall con- cisely setfo,d6mnc6nt6erfadnaamuybeper' tineutandmatedaitoubuvvt6egruuodsoft6e decisi.on appealed fro:m and shail he verified. 335.21 ]tial to court. If upon the hearing which sha.II be triedcnovo iishall appear to th.e court that testimony is .necessary for the proper disposition of the matteL iirnay take evidence or appoint a :referee to take such evi 6euceauitmay direct and report the same to the court with. his findings offact and conclu- sions ofluw\ which shall constitute a part of theproceedings upon which the determination. of the court shall be made. The court may re- verse or affirrri, whol 1 y or part y, or may nodify the decision hrought up for review. (..ostsI,aIl nol be aiiowed against the hoard unless it shall appear to the court th.at it acted with gross negligence or i.n bad .faith or with mali.ce in making the decision appealed from, 335.22 Precedence. All issues in any pro cecdiogs under the foresoiug sections shall have preference over all other civil actions and proceedings. 335.23 Restraining Order. i.n case any building or structuris erectedconstructed, recooatruc��alterecLn9aircd,cmmerbd.,or maintained; or any building, structure, or land jsused inviolation ofthis chapter ofany ordi- nance ornHerzeguiaUun`nodoouderaodhnr' ih/cooferredthereby,theboordofsupezvisucn, in addition to oth,er remedies, may institute ariy appropriate action or proceedings to prevent Iowa Code Chapter 835 such unlawful erection, construction, reum' nbudiooaherodm\repaicnmvosion'main' teoonce,oruoetorestrain,correctoruboteeud` violation to prevent the occupancy of said building, shncturc, or land or to prevent any iliegal act, conduct, business, or use in or about such premises. 335.24 Confl.id with other regulations. If the regulahmn.smade under this chapter require a greater width. or •size of yards, courts, or ot:her open spaces, or require alower height of build- ing or less uom.ber of stories, or require a gr*atarpercentageo[iottobelnKuuoccopiecL or impose other higher stan.dard.s than are re- qu rcd in any other statute or local ordivanre ocregulation, the cegnla§ooszuad000derthis chapter govern. If any other statute or local ordinance or regulation requires a greater width or size of yards, courts or other open spaces, or requires a lower he.ight of huiiding or alaao number of stories, or a greater per- centage oflottohe]eftunoccnDiecLorizupuses other higher standards than are required bythe regulations made under this chapter, the other statute or local ordinance or regulation gov- erns. If a regulation proposed or made under this chapter re!ates 10 any structure, huiidi.ng, darn, obstruction, deposit, orex,avadooiuo, O:fl, the Iiood piains 01 any river or stream, prlor approval of the department of water, air, and waste man.agement is required to establish, amend, supplement, change, or rnodify the regulation or to grant any variation or excep- tion from the regulation. xc:p'tioofrnzodzcregu]udoo. 335.25Zoning for family homes. 1. It is the intent of this section to assist in improving the quality of life ofdevelopmen- tally dinab|edpereooabyio1ogradngdhcminto the mainstrearn ot society hy making available to dhcno comououityreaidentia| opportunities in, the residential areas of this state. In order to implement dhisintent, this section shall belib- erally couotruod. 2.n.''Develnpzoeotaldisability" or"Devel- opmentally disabled" means a disability of a person whc6boneoff6efol]orviug: (1) Attributable to mental retardation, ce- rebral palsy, epilepsy; or autism. ezebru}pm\sy,epilepyy;oraotisno. (2) Attributable to any other condiboo found to be closely reiated to mental retarda- Explanation 335.24 When the zoning ordinance requires hiher standards than other oca statutes or regulations, the provisions of the zoning ordinance shall apply. When other Iocal laws or regulations require higher standards than zoning, such regulations and laws shafl apply. Deed restrictions are private and enforceable only through civil action. Deed restrictions have no effec upon zoning regulations. Any zoning regulation which relates to any activity within a flood plain may only be estabshed or changed atter approval by the iowa Department of Water, Air, and Waste Management. 335.25 This portion of the zoning law is intended to allow developrnentaUy disabled people to reside in residential areas in "family homes" of not more than eight disabled people. Such hornes must be Iicensed as residential care facilities or child foster care facilities. Family homes are to be treated as permitted uses in all residential districts and may not be subject to any specia permit or variance procedure. A now family home must be at least one-tourth mile away from existing family homes. Family homes may not house any resident: a. who is dangerous to himself or herself or others, b. who is in an active or acute stage of alcoholism, drug addiction, mental iUnesa, or communicable disease. c. whose condition or conduct is such that he or she would be unduly disturbing to other residents, or COUNTY ZONING IN IOWA • 9 Explanation d. who is in need of medical procedures or services that cannot be carried out in the facility. Restrictive covenants cannot be used to inhibit family homes. 10 + IOWA STATE UNIVERSITY EXTENSION Iowa Code Chapter 335 tion. because .the condition results in impair- ment of general intellectual functioning or adaptive behavior similar to that of mentally retarded persons or requires treatment and ser- vices similar to those required. for the persons. (3) Attributable to dyslexia resulting from a disability described in either su.b-paragraph. (1) or (2). (4) .Attributable to a mental or nervous dis- order. b. "Family home" means a comm.unity- based residential home x•vhich. is licensed as a residential care fa.cility under chapter 135C or as a child foster care .facility und.er chapter 237 to provide room and board, personal care, ha- b.i.litation services, and supervision in a family environment exclusively for not more than. eight developmentally disabled persons and any necessary support persormel, 'However, family home does not mean an individual foster family home licensed under chapter 237. c. "Permitted. use" means a use by right whic.his authorized. in all residential zoning districts. d. "Residential" means regularly used by its occupants as a permanent place of abode, which is rmad.e one's home as opposed. to one's place of business, and Which has .housekeep- ing and cooking fa.ci.l.ities for its occupants only. 3. Notwithstanding the optional provision in section 335.1 and, any other provision of this chapter to the contrary, a county, county board of supervisors, or a county zoning commission shall consider a family home a residential use of property for the purposes of zoning and s.hali treat a family home as a permitted use in all resid.enti.a.lzones or districts, including all single-family residential zones or districts of the county, .A county, county hoard of supervi- sors, or a county zoning commission shall not require th.at a family .home, its owner, or op- erator obtain a conditional use permit, special use permit, special exception, or vari.a.nce, Sec- tion 135C.23, subsection 2 shall apply to all resi- dents of a family home. 4. A restriction reservation, condition, ex- ception, or covenant in a subdivision plan, deed., or other instrum.ent of or pertaining to the tra.n.sfer, sale, lease or use of property in a county which permits residential use of prop- Iowa Code Chapter 335 erty but prohibits the use of prop erty as a fam- ily6ome for devclopcucntally disabled per- sons, to the extent of the prohibition er-aora,tndheexteutoftbeprnhibition i,s void as against the puhiic poiicy of this state and shall not be given legal or equitable effect. 335.28Reoea.ledby0�ts,cb117.1097; see 331 302(2). 335.27 Agricultural land preservation or dinance.Kocoon1yodoptsaoogricnituou|nod preoervntionordinaoce under this chapter which subjects farmlo.nd to the same use re- strictions provided in section 93A 6 for agri- cultural areas, sect:ioo95A.10 to 93A.I2 and section 472.3, subsection 6, shali appiy to farms and farm operations which are subject to the agricoliuralland preservation ordinance. 335.30 Manufactured home. A county shall not adopt or enforce zoning regulations or oth.er ordi:nances which clisallow the plans and specifications of a proposed residential structure soieiy because the proposed structure iaamanufactured home. However, a zoning ordinance or regulation shall require that a manufactured home be located andinataDed according toLheaauzeataodacdoknaf000do' tion system, setback, and minimum square footage which vvon|d apply to a site'bui\t, single farnily dwelling on the same lot, A zon- i.ng ordinance or other regulation shail not re- quireire a foundation system for a manufactured home which isincom.ipoOle with the structural design. of the manufactured home structure. units are !ocated outside a mobile honie park, requirements may be imposed that en - aur visual compatibility of the foundation sys- . Ex�Uanat^on 335.26 Section on penalties was repealod. This is now a matter of county horne rule. However, a county may not provide penalUes in excess of a $1 00 fine or more than 30 days imprisonment 335.27 If a county adopts an agricultural land preserva- tion ordinance, the use of farmland is restricted just as it is in an agricultural area. That is, the land may be used only for farm operations, farm houses, necessary utilities, and other farm oriented uses. Certain benefits also apply. The farm operations covered bythe agricul- tural |endprenervodonordinanoomnapotect*dfrom special tax assessments for such purposes as sewer, water, lights, and non'formdrainage improvements, Farmers in these areas also have some protection from nuisance suits and are given priority for water permits. The Iaw also indicatos that subsequent state agency rules will not be considered discriminatory if they are less restrictive concerning farm operations inside areas protected by an agricultural land preservation ordi- nance. Finally, if such land is condemned by the state, a statement must disclose if any of the and is class 1 or class 11 land, and itt s, that the condemnation of this Iand is necessary, (For more information refer to Extension Publication Pm -1 079, Iowa Land Use Law Explained.) 335.30 Counties may not refuse to accepmanufac- tured housing only on the grounds that it is manufac- tured housing. Counties can apply the same foundation standards, set -hacks, and minimum square footage regulations that apply to other types of housing. A mobi|ahnmeioconnidereda^manufaxturedhomo"on|y if it has been converted to real property by removing the wheels and placing it on a foundation. It also must be taxed on the same basis as a site -built dweIing. COUNTY ZONING IN IOWA • 11 Explanation 335.31 Elder family homes are considered family homes and are subject to the same zoning regulation. Their proximity to one another may be limited. 335.32 Homes for physcially disabled persons are considered family homes and are subject to the same zoning regulations. 335.33 The county board of supervisors shall consider an elder group home a family home and can limit the proximity of one group home to another. Iowa Code Chapter 335 tem with surrounding residential structures. As used in this section, "manufactured home" means a structure, transportable in one or more sections, built according to construction stan- dards promulgated by the United States De- partment of Housing and Urban Development under authority of 42 U.S.C. sec. 5403. 335.31 Elder family homes. .A county board of supervisors of county zoning com- mission, shall consider an elder family home a family home, as defined in section 335.25, for purposes of zoning, in accordance with. sec- tion 331A.2, and may identify limitations re- garding tie proximity of one proposed. elder home to another, 335.32 Homes for persons with physical disabilities. ,A county board of supervisors or colinty zoning commission. shall consider a home for persons with physical disabilities a family home, as defined in section 335.25, for the purposes of zoning, in accordance •with. chapter 504C. 335.33 Elder group homes. A county board of supervisors or county zoning commission shall consider an elder group home a family home, as defined in section 335.25, in accor- dance with section 231B.2, and may establish limitations regarding the proximity of one pro- posed el.d.er group .home to another. Prepared by Stuart H. Huntington, extension community planning specialist IOWA STATE UNIVERSITY University Extension Helping Iowans become their best. B File: Community Resource Development 2 and justice for all The U.S. Department of Agriculture (USDA) prohibits discrimina- tion in all its programs and activities on the basis of race, color, national origin, gender, religion, age, disability, political beliefs, sexual orientation, and marital or family status. (Not all prohibited bases apply to all programs.) Many materials can be made available in alternative formats for ADA clients. To file a complaint of discrimination, write USDA, Office of Civil Rights, Room 326-W, Whitten Building, 14th and Independence Avenue, SW, Washing- ton, DC 20250-9410 or call 202-720-5964. Issued in furtherance of Cooperative Extension work, Acts of May 8 and June 30, 1914, in cooperation with the U.S. Department of Agriculture. Stanley R. Johnson, director, Cooperative Extension Service, Iowa State University of Science and Technology, Ames, Iowa.