Bluffland Zoning Regulations Verson 4THE CTTY OF
DUB E MEMORANDUM
Masterpiece on the Mississippi
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JAMES (TIM A. O BRIEN, ESQ. ~ ~ { ~f
ASSISTANT CITY ATTORNEY V~ , ~)1
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LAP~'~1i"~G SERViG--:~ ~~P;'':,^,T"~"EDIT
To: Laura Carstens
Planning Services Manager
DATE: October 10, 2007
RE: Version 4 - Bluffland Zoning Regs -City Attorney's Office
Comments
The following sets forth the comments of the City Attorney's Office regarding Version 4 -
Bluffland Zoning Regs. I have tried to list these comments in general categories and in
decreasing order of legal difficulty and ending with grammatical and/or organizational
suggestions:
These proposed regulations may in a number of conceivable situations result in a
"taking" of private property by the City which would require compensation be paid
to the owners. This could occur in a number of ways, but the most obvious is
where the configuration of a particular piece of property on or near the bluff
makes it impossible under the proposed regulations for the owner to use the
property for any purpose. This can occur when an entire parcel is rendered
unusable as well as a situation where a portion of a parcel is rendered unusable.
2. Section 4 of the proposed regulations, which exempts a substantial portion of the
bluff area which is in historic preservation districts, could give rise to a claim of
unequal treatment without rational basis or an equal protection claim under the
state and federal constitutions. The result of granting this exception places
directly comparable property under different types of regulation without a rational
basis. Another problem with the exception is that it would allow a property owner
to build or remodel as long as the property onwer complies with the Secretary of
the Interior's standards. The Historic Preservation Commission could not reject a
proposal on other grounds.
3. Because the regulations subject Area B to "guidelines only" the same type of
unequal treatment argument can arise. It is unclear whether the intention was for
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-8550 / FAx (563) 583-1040 / EMAIL tiobrien@cityofdubuque.org
Area B to be regulated or not regulated. If the requirements and restrictions are
to be guidelines only, then there really is no regulation. If the requirements and
restrictions are to be somehow observed in Area B then they must be
requirements, not guidelines. It appears that the intention of the draft regulations
is to grant to the Historic Preservation Commission the discretion to impose
some of the requirements and restrictions but not others in their undirected
judgment. If this is the way that the regulations are intended to be applied, it
would be an improper delegation of zoning power.
Because the Historic Preservation Commission is established under the Iowa
Code it would not be proper for the Historic Preservation Commission to have the
authority granted to it in the proposed regulations. Iowa Code §303.34 sets forth
the powers of a Historic Preservation Commission and those powers do not
include those granted by the proposed regulations. Likewise, the authority to
grant waivers if the project meets the Secretary of Interior's Standards for historic
structures would not be appropriate because the bluff regulations deal with
entirely different issues.
4. In Section 5.0(4) the regulations provide that obstructions to the setbacks "may"
be allowed as provided elsewhere in the zoning ordinance with the exception of
decks. It is unclear what is intended by the use of the term "may". Is it the
intention to have some entity review the obstructions and approve them based
upon some standard or is it the intention simply to allow such obstructions as
may be authorized elsewhere in the code? The former would be an improper
delegation of zoning authority and the latter would seem to allow a large number
of obstructions including fences, patios, garages, balconies, and other structures.
In that event, not allowing decks would seem to be an unjustified distinction.
5. The term "bluff' is used in a number of places in the ordinance and should
therefore be defined. As currently defined, the term "bluffland area" will be
difficult, if not impossible, to administer. Among the problems I foresee include
the treatment of retaining walls and bluffs with multiple plateaus as the slope
ascends. How is the bluff to be calculated when there is a man-made retaining
wall at the foot of the bluff or anywhere else in the bluff?
6. In Section 4.0 I believe the reference to the Board of Adjustment is unnecessary
and possibly confusing because these issues would already be covered
automatically by the current provisions of the zoning ordinance.
7. In Section 5.0(3) the language should be modified to refer to a "maximum"
height.
8. In Section 5.0(5) the regulations deal with overhanging and cantilevered
structures specifically. This would appear to be unnecessary because such
structures would be prohibited by the regulations in other sections. This could
serve only to cause confusion as to whether such structures or others are really
prohibited in other sections of the regulations.
In analyzing the proposed regulations as a whole, it appears that the following result is
achieved under the regulations:
1. Historic districts on or near the bluffs are excluded from bluffland regulations.
2. All bluff areas except Area A are excluded from bluffland regulations.
3. The vast majority of bluffland of Area A is zoned R-1 or R-2 or is publicly owned
and is currently regulated except for the larger setbacks specified in the bluffland
regulations.
4. PUD zoning remains available to all bluffland areas.
5. Height limitations are no more strict than those in R-1 or R-2 zones.
6. Rezonings and amendments to the overlay district will always be available.
In the end the real effect of the regulations appears to ban one- and two-family houses
and decks within 25 feet of the bluff, but not ban fences, garages, porches, patios, and
other accessory structures. Except for the larger setback, the regulations contain no
restrictions beyond those which presently exist. The regulations seem to be directed at
one- and two-family houses which have existed in the community on the bluffs
throughout its history and to which there is really no objection.
Bluffland Conservation Overlay
1.0 Purpose and Findings
1. The purpose of the Bluffland Conservation Overlay is to promote the health, safety
and general welfare of the residents of Dubuque, Iowa through protecting the
valuable resources of the Bluffland landscape while at the same time allowing
appropriate development.
i 2. The Council finds that:
a. The character of the Bluffland Areas is an important feature of the unique heritage
of Dubuque that enriches and benefits both residents and visitors;
b. The important elements of the character of the Bluffland Areas that define its
significance include a mix of natural areas, defined by the presence of native
species of vegetation, open spaces, exposed and unexposed geologic
formations, and developed areas, defined by a combination of historic and
contemporary residential and commercial structures;
c. It is desirable to protect panoramic views of the Bluffland Areas from within
Dubuque, the Mississippi River, and significant gateway corridors, as well as
panoramic views of these features from the Bluffland Areas;
d. Preservation of these features while allowing appropriate development can only
be achieved through the use of development controls; and
e. Development controls should be responsive to the particular Bluffland feature to
be protected, which may result in multiple protection strategies used in different
geographic locations.
2.0 Definitions
For purposes of these regulations, the following words and terms shall have the
definition herein prescribed.
Bluff Face: The portion of a bluff that is substantially vertical, located between the toe
and ridge of the bluff.
Bluff Rid e: A line at the to of a bluff defined b the hi hest elevation at which the
slope falls below slope of 1;3 (hv).
Bluff Toe: A line at the bottom of a bluff defined b the lowest elevation at which the
slope falls below slope of 1:3 (h:v),
Bluffland Area: All land that can be defined topographically as having:
1. Slope of 1~3 ::'~-~-8--(h:v) or steeper,
2. Elevation change of 20 feet or greater, and
3. Those areas located within 50 feet of the Bluff Ridge line and Bluff Toe line.
Construction Activity: Activities subject to NPDES !National Pollution Dischar e
Elimination System) Construction Permits that result in disturbance of one-quarter acre
or more. Such activities include but are not limited to clearing and grubbing, grading,
excavating, filling, and demolition.
Erosion and Sediment Control (ESC} Permit: A permit required under Chapter 44,
Article VII of the Dubuque Code of Ordinances.
H:V: A ratio of horizontal distance to vertical distance.
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3.0 Bluffland Priority Areas
Bluffland Priority Areas shall be utilized to distinguish different Bluffland Areas that
share common features and have similar protection needs. The priority areas shall be:
1. Priority Area A, generally including those bluffs that are the most prominent, visible,
and characteristic of the geology. Priority A Areas may be undeveloped open space,
or developed with either residential or commercial uses, but have not been obscured
by intense development. These areas include bluffs located:
a. Along the Mississippi River
b. Along US Highway 20 west to Grandview Avenue
c. Along US Highway 52 north
d. Along Catfish Creek, Middle Fork within city limits from the Mississippi River to
south of US Highway 20.
2. Priority Area B, generally consisting of bluffs that are less prominent in geologic
formation or due to slightly obscured views resulting from surrounding development.
These areas include bluffs located:
a. Along Couler Valley, from 26th Street to city limits
b. Along Peru Road, from 32nd Street to Kennedy Court
c. Along 32nd Street, from Peru Road to John F. Kennedy Road
d. Along Kauffmann Avenue, from Central Avenue to Carter Road
4.0 Applicability
The Requirements and Restrictions set forth in Section 5 of these regulations shall not
apply to historic preservation districts, landmarks, landmark sites, and individually
desi Hated historic ro erties which are sub'ect to re ulation under Cha ter 25 of the
Dubu ue Code of Ordinances.
The Requirements and Restrictions set forth in Section 5 of these regulations shall
apply to all land and development that is located within Priority Area A of the Bluffland
Conservation Overlay as defined herein. For the pur oses of these re ulations an
structures which were lawful before this ordinance was adopted or amended and that do
not com I with these re ulations shall not be considered as non-conformin .Should
an such lawful structure be destro ed in whole or in art it ma be reconstructed.
E ansions of and additions to existin structures and new construction shall be
subject to these regulations Special exceptions and variances from and appeals of
inte retations of Section 5 of these re ulations ma be ranted b the Zonin Board of
Ad'ustment in accordance with Section 5 of the Zonin Ordinance.
The Requirements and Restrictions set forth in Section 5 of these regulations shall
serve as guidelines only for all land and development that is located within Priority Area
B of the Bluffland Conservation Overlay as defined herein. Waivers from these
uidelines ma be ranted b the Historic Preservation Commission in accordance with
the Secrets of the Interior's Standards for Historic Structures. eats of the decisions
of the Historic Preservation Commission ma be ranted b the Zonin Board of
Ad'ustment in accordance with Section 5 of the Zonin Ordinance.
5.0 Requirements and Restrictions
1. Demolition of Existing Structures. No existing structure shall be demolished or
removed without first having been granted a demolition permit in conformance with
the demolition permit procedures applicable to conservation districts as set forth in
Chapter 11 of the Dubuque Code of Ordinances. In addition to any other
determinations to be made by the Historic Preservation Commission in its review of
such permit application, they shall also consider:
a. Whether the structure possesses any historic, cultural or other significance in
relation to its location within a Bluffland Area, and
b. Whether removal of the structure would result in substantial harm to the character
of the surrounding Bluffland Area or would otherwise violate the purpose and intent
of this section.
2. Construction Activities. Construction activities shall be prohibited without prior
approval of an erosion and sediment control permit.
3. Height Restrictions. All structures shall be limited to 30 feet in height, or to the height
limit established in the underlying zoning district, whichever is less.
4. Setback Restrictions. All structures shall be set back from the ridge or toe of the bluff
a distance of 25 feet, or the distance established in the underlying zoning district,
whichever is greater. Obstructions to required setbacks may be allowed as provided
elsewhere in this Code, provided decks shall not be allowed to project into a required
setback.
5. Gonstruction Practices. Overhanging or cantilevered structures, structural elements,
or other design features shall be prohibited between the ridge and toe of the bluff.
Revised 10/03/07 by BAC