Ames City Council Meeting Recap

An account of the city council meeting appears at AmesNewsOnline.com. The rule relating to city authority is stated (somewhat ironically) in James Enterprises, Inc. v. City of Ames, 661 N.W.2d 150, 153 (Iowa 2003), in which the Iowa Supreme Court ruled that the city had, in fact, enacted an ordinance beyond the scope of its authority:

In interpreting cities’ home rule power, the court has recognized that cities have “the authority to act unless a particular power has been denied them by statute.” Crippen v. City of Cedar Rapids, 618 N.W.2d 562, 568 (Iowa 2000) (quoting City of Des Moines v. Master Builders of Iowa, 498 N.W.2d 702, 703-04 (Iowa 1993)).

The home rule scheme envisions the possibility that state and local governments will regulate the same areas:

A city may not set standards and requirements which are lower or less stringent than those imposed by state law, but may set standards and requirements which are higher or more stringent than those imposed by state law, unless a state law provides otherwise.

Iowa Code § 364.3(3) (emphasis added).

Notably, the grant of authority to local government to establish stricter standards by ordinance than those provided in state statutes dealing with the same subject is expressly curtailed if a state law provides otherwise.

There is also a fairly recent discussion of “the doctrine of preemption” in City of Davenport v. Seymour, 755 NW 2d 533, 538-39 (Iowa 2008). The Iowa Supreme Court has recognized express preemption and two forms of implied preemption. The Ames ordinances are an example of the latter.

The problem, of course, is deciding whether the state has “occupied the field” and thereby prohibited a city from acting. My assertion is simply that the city has acted ultra vires in an area of law occupied by the State in chapter 364 of the Code of Iowa.

Regardless, the ordinances enacted by the city last fall relating to the plat of survey were and always will be a solution in search of a problem that effectively double the cost of a procedure that should otherwise be simple with no benefit to the city or the owner.

Update on 2010-04-22 13:30 – There is an account of the City Council meeting in the Iowa State Daily and in the Ames Tribune.

Memo to the Ames City Council

On April 20, 2010, the Ames City Council is hosting a round-table event and has invited developers and other stakeholders to address the city development process. My thoughts for the city are described in this short memo.

My background. I have been a city attorney and involved in development matters for 19 years. I have worked for smaller cities that do not have the development issues that Ames has. Nevertheless, I have served with city engineers as the ad hoc planning staff. I appreciate a good, well-thought-out development plan. I understand both the desire and need for professional studies and advice. I understand that the development process seems to the lay person like something that ought to be simple, but that it is, in fact, composed of numerous, complex issues. How these issues are addressed affects everything from how the potties flush to fire protection to economic development to transportation.

Problems. These are the main problems I see in my practice and from conversations with other attorneys:

• Subdivision ordinance.
  • Every division of land treated as a “subdivision plat.” The City treats every division of land as a “subdivision” requiring all of the formalities of the state subdivision law and the city ordinance. This more or less doubles the cost and difficulty of land division over the simpler “plat of survey” process. Not every division of land requires that there be a full-blown subdivision plat, and a waiver of application of the subdivision ordinance — a perfectly ordinary municipal exercise everywhere but Ames — appears to be viewed by the staff as inappropriate under all but extreme circumstances.
  • Plat of survey ordinance is illegal. Section 354.4 of the Iowa Code was designed to permit easy division of land. The creation of a plat of survey is a lawful and appropriate way to both divide land and combine tracts of land. This code section was designed to make the jobs of lawyers, assessors, recorders, and auditors simpler by the creation of plats that use a short legal description. Where the state has occupied the field, as it clearly has in the area of land division, a city is not allowed to make more onerous rules. Unfortunately, I believe that the city staff has sold the council on an ordinance that makes every division of land into a subdivision plat and disallows good common sense uses of the plat of survey.
• The Land Use Policy Plan (LUPP).
  • LUPP as holy writ. The LUPP is what the state law calls a “comprehensive plan.” My understanding is that the comprehensive plan is supposed to be a helpful reference for the orderly development of a city. The City of Ames, however, treats the LUPP as a holy writ that must be changed with the same painstaking effort that must be applied to changing the zoning code and the subdivision code.
  • LUPP as Zoning tool. The LUPP is used in a way that simulates zoning in fringe areas of the city. While it is illegal for the city to pass a zoning law, the city applies the LUPP in the same way as a zoning code to prohibit development in the two-mile area surrounding the city.
• The planning staff’s authority is generally too limited. While I do not know whether this statement is actually true, my observation is that the staff believes it is true. My observation further is that virtually every development matter that does not fit within the tight confines of what one might call a “plain vanilla” subdivision plat requires a process that involves multiple council actions. Sometimes, it looks something like this: (a) submission of proposal; (b) review by staff of proposal; (c) development review committee meeting wherein roadblocks are outlined; (d) letter to owner outlining problems; (e) discussion between owner and staff of problems and solutions; (f) a letter to the council begging referral to staff for study of possible solution, waiver, etc.; (g) extensive study and report back to council by staff; (h) referral back to staff for development of an actual plan; and (i) report back to city council for a decision.
• The City and the County need a defined process for fringe development. Anyone who wants to develop property lying in the Ames Urban Fringe has to satisfy two different planning staffs, planning committees, and governing bodies. Without a joint process, a property owner is nothing more than a ping pong ball who can be batted back and forth between the two bureaucracies.

Professional Staff. I have the highest regard for the city staff. Although we do not always agree, I find them to be courteous and helpful. I believe that they have the best interests of the city at heart.