Argument of Counsel for Friends of Rice Field; Trial August 18, 2014
Transcript of Proceedings in the Iowa District Court for Polk County
August 18, 2014
Beginning at page 14, line 9 through page 41, line 41
[Mr. Butler attorney representing Friends of Rice Field] The Rice Field is a familiar place. It gives rise – invites the existence of community. It’s a point of pride in the community. It’s a mediacy to the community, presents an opportunity for people to maintain connection with each other and with nature.
The 2020 plan, which is the Des Moines comprehensive land use plan, describes Beaverdale as a highly image-able neighborhood, including the well-known Beaverdale brick, the Village Center, which technically, under the zoning ordinance and the 2020plan, is called a commercial node.
The cohesive elements of Beaverdale read as a fabric rather than as mere individual elements of building and streets and other items in the community.
Single-family living makes up the character of the neighborhood. The Court can see from Exhibit 5 yellow is single-family living, red is the commercial node, orange is a multifamily living, and the gray-shaded area is public property.
There’s a large area in the northeast part of the neighborhood that is designated as R-3. That is largely Beaverdale Park in the large wooded ravine that abuts Veterans’ Hospital.
There is –there are some apartments on 30St that extend a block or two beyond Boston Avenue to the north; otherwise, the area designated R-3 is basically woodland with actually one single house in the area.
If the Court were to turn to Exhibit No. 6, Exhibit No. 6 shows the extent of Beaverdale Park, and there is an unnamed paved road on the east slide of Beaverdale Park which is a driveway to the single house in that entire area.
Otherwise, the Court should be able to determine from Exhibit 5 that the predominant character of Beaverdale is single-family housing.
THE COURT: That driveway is on the west?
MR. BUTLER: That driveway is on the west side of Beaverdale, yes.
THE COURT: That’s the former Brown home?
MR. BUTLER: Former Brown, yes, Your Honor. As I said, the Rice field, as the neighbors have come to call us since the school was torn down and has become integral to the fabric of the neighborhood and its loss greatly affects the owners because without it, Beaverdale becomes a less desirable place to live.
In 2001 Rice School was torn down. The superintendent at that time said it would not be sold because the demographics pointed for a need for an additional school around 2020 in the Des Moines School, and the City of Des Moines entered into a lease agreement whereby Prospect Park was leased by the school district for motor vehicle parking in exchange for Rice Field being leased to the City for a public park.
And I direct the Court’s attention to Exhibit 9, which is that lease agreement for Rice Field to be a public park for a period of 20 years with an option to extend its use as public park and its lease as public park.
I would further direct the Court’s attention to Exhibit 7, which is an aerial photograph of the area in question, which shows Rice Field and the surrounding neighborhood that one can perceive as overwhelmingly R-1, single-family residential.
Exhibit 8 is a close-up aerial view of Rice Field.
I will take a moment to note that there are – take a look at Exhibit 7. At the south end to the right of the exhibit there is an apartment complex to the south of Rice Field, and right near the end of Beaver Avenue on the left side of the exhibit hidden by the trees is another small apartment building. These are both senior apartments, and they are indicated in orange on the zoning map.
These apartments have the effect –they are across the street from the particular area that we’re concern with, and they are attached to two commercial nodes. And so what they essentially serve is a calming of the area from commercial to residential, and then it becomes single-family housing after that.
The 2020 plan on page – I believe it’s page 40 of the 2020 plan, which is Exhibit No. 14, the 2020 plan designates that portion of Beaver Avenue that is shown in Exhibit No. 17 as a protected residential corridor, the idea being that when you’re sandwiched in between two commercial nodes and you have single-family homes with large setbacks on a corridor, that you designate it as a residential corridor for the protection of those single-family homes to avoid the proclivity of developer buying up the homes, subdividing the homes, letting for apartments, letting them deteriorate, and then finally tearing them down and extending commercial area into the residential area. And so it’s designated as a protected residential corridor.
In 2005 some coincidences occurred which alarmed some of the members of the community. The school board member Connie Boesen argued to the school board that it was really in the best interest of the schools to sell the Rice site, and she successfully moved the school board to sell Rice Field.
Serendipitously, Connie Boesen’s extended family members – Tom Boesen, Edward Boesen, Frank Boesen, and Bob Boesen --- were tossing around an idea to develop Rice Field, if it just ever happened to come up for sale. As Councilman Coleman had indicated at the first hearing in march of 2007 he was aware of the Boesens’ designs well before the drawings ever came to fruition.
Mr. Tom Boesen formed an organization called the BBC ostensibly to encourage the mining of government funds to improve the commercial district, the structures in the community district, particularly the facades, some of which he owned. And some very talented up - and – rising business people joined him, and some of them ran as slate to help lead the BNA.
The BNA subsequently became active in promoting the revitalization of the commercial node, and the BBC arranged a neighborhood meeting and advertised it as a presentation for the remodeling of the core business district. But when interested people arrived at the meeting, the were asked to vote a on a series of proposals for the development of Rice Field
The vote was overwhelmingly to leave it alone. They took a second vote, and it was overwhelmingly to have an enhanced park. Finally, the attendees were directed to vote for one of the developments only, and they voted for the Boesen development plan.
The vote was necessary because the City of Des Moines had employed a consulting firm, RDG, to assess Beaverdale’s needs. And they had polled the community scientifically on the community’s attitude towards Rice Field. And 67 percent of the scientific poll indicated that they would want the field left alone, but 75 percent said that they would concede to, if not their first choice, their second choice to having an enhanced community gathering area.
So with those types of statistics, it was necessary for a developer to have some sort of counter to the neighborhood’s perspective.
A committee was appointed by the school board to - - or the school board decided to issue an RFP. They got into the zoning business, essentially by issuing an RFP, a request for proposal, instead of a pure sale of the property.
They asked for development plans and they appointed a committee to assess the development plans and make a recommendation to the school board.
The development - - the committee was made up of BBC participants and the new leadership of the BNA.
To no one’s surprise, Boesens’ proposal was selected, and the property was sold to Boesens, notwithstanding the fact that another developer, actually, the principal of the developer in the present case, had made a bid some over $100,000 more than the Boesen bid.
The community opposition arose. A lawsuit was filed alleging that school board’s action was violative of the open meetings law for two reasons: One, that the committee met in private and that the school board, when the issue came up for their decision, had changed the site of their meeting by placing a note maybe an hour before the meeting on the boardroom door. And so the people who showed up at the boardroom ended up going to Cassidy, I think it is. The meeting was Cassidy Elementary, and by the time they arrived, the topic had been completed, and they put no input into the process.
The district court and the court of appeals held that the open meetings’ law did not apply to legislative action. It only applied to executive action, and basically they said period, we’ll stop there, and, therefore the community lost.
The question of whether the school board acts in all three capacities –visual capacity, legislative capacity, and an executive capacity – was not either addressed by the Court or, actually, it was not addressed by counsel.
At any rate, by 2008 that lawsuit had completed, and the process to develop Rice Field continued.
Members of the community circulated a petition, gathered over a thousand signatures, which was submitted to the City of Des Moines, urging that the City – that the field not be developed. That was entered in the first PUD proceedings.
Fortunately, for the Boesens, Mr. Coleman was city councilman, and the efforts to change the zoning from Rice Field, which was originally R-160, single-family residence to PUD mixed-use received a favorable reception by the school board.
Citizens actually prevailed before the Plan and Zone commission - - zoning commission, arguing that PUD was - - the original PUD was not in character with the surrounding areas.
The arguments, as exactly submitted, are shown in Exhibit No. 13, which is the - - which were the arguments of the Petitioners and others submitted by their council at the march 2007 hearing. It was basically a slide presentation with talking points.
The developer did not receive enough votes to carry the recommendation of the plan and zoning commission. They felt that the development did not match the character of the neighborhood, and so it proceeded to the city council without the plan and zoning recommendation.
As I indicated, looking at Exhibit 1 and the aerial photographs. That the area surrounding Rice Field is overwhelmingly R – 1 single-family housing, and that it was argued that the development was an encroachment on this protected residential corridor, in violation of the 2020 plan.
The developer before the council shifted the focus of their argument, Rice partners at that time argued that the mixed use nature of the proposed development made the plan in accordance with the comprehensive plan because the mixed uses included seven condominiums sometimes called cluster homes attached at the edge giving every appearance of a story-and-a-half Beaverdale brick. In addition to the condos, there was a plan for 13 row houses along Beaver Avenue.
These elements, the developer maintained, were in the scale of the housing surrounding the area. The development was touted as providing 70 yards of accessible green space and was likened to the length of a football field, although its width was not mentioned.
The plan provided for a community gathering area on Beaver/Adams Avenue designated as a plaza. Retail building on Adams, although privately owned, were argued to serve the public at large and should be considered augmenting public spaces.
And at page 3 of the Petitioners’ brief, Your Honor, we cite to the record those particular arguments by the developer at the March 2007 hearing.
Exhibit 10 is a copy of the Boesens’ application for rezoning.
Exhibit 11 is a drawing of the proposed development plan under the original PUD. In the background you can see the sort of individual story-and-a-half housing.
Exhibit 12 is a copy of the consent map, the red indicating the objectors, gren indicating the people that dissented to the development. Of all the properties, the percentage is 66 percent objected and – but as to those people that responded, it was 34 to 3.
As I said, Exhibit 13 were the arguments of the Petitioners and other citizens.
On August of 2008, the Boesens voluntarily abandoned their development plans due to the untimely death of Mr. Edward Boesen, and Exhibit 15 is a newspaper article which indicates that the Boesens were abandoning - - intending to abandon their development due to the death of Mr. Edward Boesen.
Also, as I mentioned before, in 2008 the court of appeals ruled against the objectors on the claim of the school board violating the open meetings law.
Now, I direct the attention of the Court to Exhibit No. 21, which is a section of the Des Moines Municipal Code that is relevant to PUDs.
This section of the Code is 134, and I will refer to them as the last three digits. 693 to 695 concerns a conceptual plan, requirement of conceptual plan, and 696 to 699 concerns what is called a “development plan.” And 696, specifically, requires the submission of the development plan within two years after the conceptual plan.
Section 708 provides that in the event the developer fails to submit a development plan, a hearing shall – underline or emphasize the “shall” – be scheduled before the plan and zoning commission regarding the failure. And the zoning commission shall consider all the circumstances and shall vote the appropriate remedial measures to be initiated, which are to include two: Either the reversion of the property to R-1 or to its previous zoning, which in this case would be R-160, or to direct the city council to bring action for enforcement of the PUD>
At the 2013 hearing, which we’re here to consider, the alleged legalities, the objectors complain about the failure of both the plan and zoning commission and the city council to remedy the failure of the Rice development partners to develop Rice Field and return the property to R -160 to the new PUD rather than merely a change in part of the conceptual plan.
Now, after the Boesens failed to make the development and they pulled out of the sale, the City sold the property again. This time it went to the highest bidder, which is the principal of the intervener in this case.
The intervener applied to amend the PUD conceptual plan, which Boesens had put in place. The plan and zoning commission approved the amendment, voting over the objections of some of its members that the zoning action – one, that this was zoning action and the zoning rules were necessary to apply: and, two, that the zoning commission had failed to take remedial relief on measures required by the statute.
Nonetheless, the plan and zoning commission recommended the proposal, proceeded to the city council with their recommendations, and was heard \by the City in march of – I’m sorry, November 2013.
The attorney for the surrounding property owners brought to the council’s attention the plan and zoning commission’s failure to remedy the default or propose a remedy for the default and the city council’s failure to follow up on that. And the City responded that lots of PUDs are left undeveloped and nothing is done.
It was the Petitioners’ position, well, even though there’s lots of PUDS left unresolved, that’s illegal. And, therefore, the Petitioners’ were overruled. But the Petitioner in this case are asking the Court that it impose a remedy in its -- to this cause that is joined to the writ, that the property be, in fact, designated R-160, and that any development be taken from that status of the property rather than the current PUD that was originally placed on the property.
The only other remedy that would be available would be specific enforcement, which would be completely impractical, so the return of the property of R-60 would be an appropriate remedy.
Section 700 in Exhibit 21 governs the amendment of a PUD conceptual plan. The provision provides that the proposed amendment should be resubmitted in the same manner as the original conceptual plan. So the Petitioners argue before the council that the original conceptual plan constituted zoning, and so that the amendment of the conceptual plan constituted an amendment to zoning.
And the procedure for amending zoning should apply, and the substantive law of zoning should apply.
The city staff, zoning staff, and the attorneys for the City cited King v. The City of Cedar Rapids, 537 N.W. 2d 718, (Iowa 1995). They cited that the case as authority for the proposition that action amending conceptual ;loan was not zoning, and the council agreed. It is – this is, perhaps, the central point in this particular case or the central disagreement in this case.
Petitioners argue that the reliance on hand by the City is misplaced, and the reason for that is that in King the city council was confronted with a request to amend the site development plan under a standard Euclidean zoning ordinance – I believe it was R-3 or R-2 – which allowed for multifamily living, construction from one story to several stories.
The land in question was originally zoned as single-family housing. The developer obtained rezoning of the property to multifamily housing. The ordinance permitting multifamily structures permitting many concepts and local residents were not in opposition because the plan that the developer was touting was of some nice single-story condos, and they liked it.
Nonetheless, the development fell through after the zoning was allowed, and a second developer proposed putting a church complex on the site, and that met with the community’s approval. The community was -- the case notes was historic designated community.
But the church complex fell through, and a third developer submitted a site development plan for the construction, this time of a high-rise condominium. And the neighbors in the historic neighborhood basically went ballistic and challenged the plan that it did not proceed as a zoning amendment and zoning principles were not applied, and they lost at the district court.
And the Iowa Supreme Court upheld the district court, saying that the – that the change in the site development plan was merely a resolution of the City to assure – and review by the City to assure compliance with regulations and other various city codes and regulations relating to such matters as the design of the building, the landscape data, the engineering data and other factual information relating to the intended development of the property.
The Supreme Court noted that the city council acts by regulation, motion or ordinance, and in this case this was administrative in nature. It was a mere resolution, and it was just merely part of the good mechanics of enforcing the City’s zoning ordinance.
But the most important point of it is that the zoning ordinance permitted both the original condominium concept and the high-rise concept.
In the Des Moines PUD ordinance, which I set out again in Exhibit No. 21, there is absolutely no indication of what may be built, what designs, how many stories, anything about what may be built in the PUD.
The Des Moines PUD ordinance merely sets out the procedure for implementing PUD, but it doesn’t provide for any of the substantive restraints or restrictions on the use of property.
The Supreme Court has said it doesn’t matter what you call actions by the city council, it’s what you’re actually doing, and that when you – when you set out building restrictions to a particular set of site, that that is an ordinance.
The application of an ordinance and designating a particular site as having particular restrictions, building restrictions on it, is an act of making an ordinance with regard to that particular property, and that as a result, in Court, in addition , states that the PUD must be in compliance and measured against certain standards.
And so the standards would be the – the initial PUD would be the community comprehensive plan, and the PUD would then inform people by placing restrictions on record of the conceptual plan. The PUD would thereby inform the public of the nature of the restrictions
And this is important because an ordinance is only constitutional -- it is unconstitutionally vague if it does not – if it’s not sufficiently definite enough to warn of the prescribe conduct. And so the PUD chapter of the municipal code without more would be unconstitutionally vague if id did not incorporate as the actual zoning ordinance the restriction contained in the conceptual plan.
And so if the PUD doesn’t provide any guidance as to the ordinary use of the restrictions, the Petitioners assert that it’s unconstitutionally vague.
The ordinance really only can be saved from constitutional infirmity if the application of the ordinance renders the ordinance sufficiently definite to provide notice of the restrictions since the conceptual plan provides the use restrictions, adoption or amendment to the conceptual plan is, in fact, zoning action.
Application of the legal principles applicable to zoning involve almost an identical analysis, and that is that the city council acts arbitrarily and capriciously if it acts without regard to law or fact. So if it does not act according to zoning principles or it does not employ zoning procedure, it acts arbitrarily and capriciously.
As stated another way, if the PUD ordinance vest unbridled discretion in the city council, a for sure eye, the action pursuant to the PUD is arbitrary and capricious.
And so when the Des Moines City Council approved or at least took under consideration the new proposal for a PUD, what they were doing was imposing new use restrictions on Rice Field after it approved the original plan. And by amending the conceptual plan, it engaged zoning action.
And what they had done, though, was they – as was pointed out by the Petitioners’ counsel, the City ruled that this was not zoning neither the procedure applied nor the substantive law regarding zoning applied.
What I interpret as the substance of law would be those principles both in the 2020 plan and by statute against which compliance – they present the standards of which compliance of the PUD is judged. Generally, those – the city council votes became irrelevant. And the best example of threating those – the principle as a development is that council member Halley Griess said that – at the council meeting that since this was not zoning action, he didn’t believe that the City had even authority to tell a developer how to develop its own property.
So it clearly shows that the council member simply abandoned all principles of zoning law that are in place to guide a municipality in making zoning determinations.
Since the zoning was not an issue for them, neither was the public welfare or the character of the neighborhood or housing values or anything that is set forth in the Iowa Code regarding zoning or in the Des Moines Municipal Code and the 2020 plan.
The consent map shown at Exhibit No. 22, a few more people objected to the second plan, the current plan that we’re considering, and it clearly – again, 66 percent of all the property owners and only one property owner consented, 66 percent of all property owners in the vicinity objected.
The 414.5 of the Code of Iowa provides that if 20 percent of the landowners object, then the council – when the council acts, it must act on a four-fifths majority. The Des Moines Municipal Code takes that one step further and states – I’m sorry, the statute requires 75 percent, three-quarters.
The Des Moines Municipal Code requires it to go to four-fifths, and council ruled that it would proceed merely on the majority vote, and that is going to affect –obviously, have an effect on the voting patterns because if you’re bound to lose because there’s going to be a majority, you may not vote, whereas, you might vote against it if it is the deciding vote. Two votes would have been required to defeat the measure.
So the procedure became integral to the council’s action. But, again, more importantly is the fact that nothing in the 2020 plan, character of the neighborhood, all the principals of the 2020 plan, the protective nature of the residential corridor, the R-1 housing, none of that became of any interest or concern to the City because they felt that they were just tweaking the plan and not undertaking zoning action.
That is the primary illegality that the Petitioners allege, and it is the primary theory of the recovery in the case.
We have an alternative theory of recovery, and that is that the city council in authorizing this pan had engaged in spot zoning. In view of the cases indicate that a PUD almost by definition is spot zoning. It is taking a spot and zoning it differently, particularly if it it’s zoned according to a particular plan rather than twat is otherwise around in the community. If the zoning within the community were sufficient for the developer, they wouldn’t need the PUD. So, by definition it’s spot zoning.
Of course, the question in not merely whether they are spot zoning or whether it’s illegal. And it’s illegal, under the strict set of circumstances laid down by the Iowa Supreme Court, and that is essentially that it is arbitrary and capricious, it’s an abuse of council power and authority if it bears no relation to the comprehensive plan.
The action by the city council in this case does, if fact, bear no relation to the comprehensive plan. It does not protect. It’s a three story single apartment building, which –the drawing of which can be seen at Exhibit No. 18. Nothing in the area is three stories. It’s surrounded by single-family housing. It’s completely out of character with the surrounding area, though we concede that across the street, the end of the commercial zone, there is that senior living apartment which is tow stories plus a basement window exit story as well.
Again, since the city council said its zoning action was not involved and they ignored the provisions of the comprehensive plan, their conduct, their decision, was, by definition, arbitrary and capricious because it was in complete disregard of the law. No reason for distinguishing between the general character of the community and this particular plan was offered.
For a concise argument of why the developer’s plan is in accordance with the comprehensive plan, the Petitioners’ attorney remarks at the first hearing note to the Court are in the record of the March 2007 hearing, which, of course, are shown in their entirety at Exhibit 13. And the remarks of city council in November 2013, written remarks, were submitted and received by the council detailing the failure of the PUD to comply with the comprehensive plan. The developer cannot make a single argument as to its – the comprehensive plan and how the development fit into it, and no council member made an argument or statement as to why the comprehensive plan was applicable or any principle of the comprehensive plan was applicable.
And, as I said before, the city council specifically stated that this was not zoning action and did not have to proceed. So council members flatly stated that they should defer to the developer and not interfere with what a developer wants to do with their land.
The Petitioners added an equal protection argument in the petition for writ of certiorari. The equal protection argument really is exactly the same as the – or analysis is exactly the same as the spot zoning analysis. Essentially spot zoning is denial of equal protection of laws.
The seminal case for zoning, in particular, the constitutionality of zoning, is that e City of Euclid, Ohio v. Ambler Realty Company, 272 United States Reports 365, and that case was decided in 1926. And the case is surprisingly prescient of the situation that we are facing in Beaverdale. And I would like to quote from that case because I think it sets out the injury that Petitioners have sustained by this development.
And I quote from that case, “The matter of the zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports. These reports, which bear every evidence of painstaking consideration, concur” – and there’s some extraneous material that I’ve omitted – “with particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by other, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupations, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities until, finally the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.”
United State Supreme Court.
In conclusion, Your Honor, the action of the Des Moines City Council, which Petitioners complained to be aggrieved, constitutes zoning. The council and its lawyers emphatically, but incorrectly stated at the hearing during November of 2013, the proceeding did not involve zoning. That the council and its staff and its lawyer declared to the assembled constituency, including the Petitions, that procedural requirements which attached to zoning actions well as substantive zoning principles did not apply to their decision regarding a requested amendment.
Zoning action conducted to avoid a procedural requirement and of substantive principles required by statute, Iowa and Federal Constitution and case law, cannot be sustained.
As I indicated on Wednesday, the judiciary bends over backwards to afford elected officials and the electorate the freedom to engage in the conflict of attendee to government by representative democracy unrepeated by hovering referees in judicial roles
Through accumulated case, law, the Iowa Supreme court has demonstrated the bounds of judicial tolerance to the business of democracy are almost limitless. But in this case a municipality thumbs its nose at the legislature and the judiciary and the electorate by acting heedless of simple fundamental principles of law constructed to give a semblance of attentive and deliberative representative of government acting in furtherance of the general welfare. The offending government body must be called to account for its misconduct.
For those reasons, Your Honor, we would urge the Court to find that the council’s approval of the current PUD is illegal, that it should not be sustained, and that the writ should be sustained and that the equitable relief joined the petition specifically mandamus to zone property, turn the zoning on the property to R -160, and any further consideration of development should follow – should be in accordance with the comprehensive plan as required by the statute.
That ends our argument at this time.
August 18, 2014
Beginning at page 14, line 9 through page 41, line 41
[Mr. Butler attorney representing Friends of Rice Field] The Rice Field is a familiar place. It gives rise – invites the existence of community. It’s a point of pride in the community. It’s a mediacy to the community, presents an opportunity for people to maintain connection with each other and with nature.
The 2020 plan, which is the Des Moines comprehensive land use plan, describes Beaverdale as a highly image-able neighborhood, including the well-known Beaverdale brick, the Village Center, which technically, under the zoning ordinance and the 2020plan, is called a commercial node.
The cohesive elements of Beaverdale read as a fabric rather than as mere individual elements of building and streets and other items in the community.
Single-family living makes up the character of the neighborhood. The Court can see from Exhibit 5 yellow is single-family living, red is the commercial node, orange is a multifamily living, and the gray-shaded area is public property.
There’s a large area in the northeast part of the neighborhood that is designated as R-3. That is largely Beaverdale Park in the large wooded ravine that abuts Veterans’ Hospital.
There is –there are some apartments on 30St that extend a block or two beyond Boston Avenue to the north; otherwise, the area designated R-3 is basically woodland with actually one single house in the area.
If the Court were to turn to Exhibit No. 6, Exhibit No. 6 shows the extent of Beaverdale Park, and there is an unnamed paved road on the east slide of Beaverdale Park which is a driveway to the single house in that entire area.
Otherwise, the Court should be able to determine from Exhibit 5 that the predominant character of Beaverdale is single-family housing.
THE COURT: That driveway is on the west?
MR. BUTLER: That driveway is on the west side of Beaverdale, yes.
THE COURT: That’s the former Brown home?
MR. BUTLER: Former Brown, yes, Your Honor. As I said, the Rice field, as the neighbors have come to call us since the school was torn down and has become integral to the fabric of the neighborhood and its loss greatly affects the owners because without it, Beaverdale becomes a less desirable place to live.
In 2001 Rice School was torn down. The superintendent at that time said it would not be sold because the demographics pointed for a need for an additional school around 2020 in the Des Moines School, and the City of Des Moines entered into a lease agreement whereby Prospect Park was leased by the school district for motor vehicle parking in exchange for Rice Field being leased to the City for a public park.
And I direct the Court’s attention to Exhibit 9, which is that lease agreement for Rice Field to be a public park for a period of 20 years with an option to extend its use as public park and its lease as public park.
I would further direct the Court’s attention to Exhibit 7, which is an aerial photograph of the area in question, which shows Rice Field and the surrounding neighborhood that one can perceive as overwhelmingly R-1, single-family residential.
Exhibit 8 is a close-up aerial view of Rice Field.
I will take a moment to note that there are – take a look at Exhibit 7. At the south end to the right of the exhibit there is an apartment complex to the south of Rice Field, and right near the end of Beaver Avenue on the left side of the exhibit hidden by the trees is another small apartment building. These are both senior apartments, and they are indicated in orange on the zoning map.
These apartments have the effect –they are across the street from the particular area that we’re concern with, and they are attached to two commercial nodes. And so what they essentially serve is a calming of the area from commercial to residential, and then it becomes single-family housing after that.
The 2020 plan on page – I believe it’s page 40 of the 2020 plan, which is Exhibit No. 14, the 2020 plan designates that portion of Beaver Avenue that is shown in Exhibit No. 17 as a protected residential corridor, the idea being that when you’re sandwiched in between two commercial nodes and you have single-family homes with large setbacks on a corridor, that you designate it as a residential corridor for the protection of those single-family homes to avoid the proclivity of developer buying up the homes, subdividing the homes, letting for apartments, letting them deteriorate, and then finally tearing them down and extending commercial area into the residential area. And so it’s designated as a protected residential corridor.
In 2005 some coincidences occurred which alarmed some of the members of the community. The school board member Connie Boesen argued to the school board that it was really in the best interest of the schools to sell the Rice site, and she successfully moved the school board to sell Rice Field.
Serendipitously, Connie Boesen’s extended family members – Tom Boesen, Edward Boesen, Frank Boesen, and Bob Boesen --- were tossing around an idea to develop Rice Field, if it just ever happened to come up for sale. As Councilman Coleman had indicated at the first hearing in march of 2007 he was aware of the Boesens’ designs well before the drawings ever came to fruition.
Mr. Tom Boesen formed an organization called the BBC ostensibly to encourage the mining of government funds to improve the commercial district, the structures in the community district, particularly the facades, some of which he owned. And some very talented up - and – rising business people joined him, and some of them ran as slate to help lead the BNA.
The BNA subsequently became active in promoting the revitalization of the commercial node, and the BBC arranged a neighborhood meeting and advertised it as a presentation for the remodeling of the core business district. But when interested people arrived at the meeting, the were asked to vote a on a series of proposals for the development of Rice Field
The vote was overwhelmingly to leave it alone. They took a second vote, and it was overwhelmingly to have an enhanced park. Finally, the attendees were directed to vote for one of the developments only, and they voted for the Boesen development plan.
The vote was necessary because the City of Des Moines had employed a consulting firm, RDG, to assess Beaverdale’s needs. And they had polled the community scientifically on the community’s attitude towards Rice Field. And 67 percent of the scientific poll indicated that they would want the field left alone, but 75 percent said that they would concede to, if not their first choice, their second choice to having an enhanced community gathering area.
So with those types of statistics, it was necessary for a developer to have some sort of counter to the neighborhood’s perspective.
A committee was appointed by the school board to - - or the school board decided to issue an RFP. They got into the zoning business, essentially by issuing an RFP, a request for proposal, instead of a pure sale of the property.
They asked for development plans and they appointed a committee to assess the development plans and make a recommendation to the school board.
The development - - the committee was made up of BBC participants and the new leadership of the BNA.
To no one’s surprise, Boesens’ proposal was selected, and the property was sold to Boesens, notwithstanding the fact that another developer, actually, the principal of the developer in the present case, had made a bid some over $100,000 more than the Boesen bid.
The community opposition arose. A lawsuit was filed alleging that school board’s action was violative of the open meetings law for two reasons: One, that the committee met in private and that the school board, when the issue came up for their decision, had changed the site of their meeting by placing a note maybe an hour before the meeting on the boardroom door. And so the people who showed up at the boardroom ended up going to Cassidy, I think it is. The meeting was Cassidy Elementary, and by the time they arrived, the topic had been completed, and they put no input into the process.
The district court and the court of appeals held that the open meetings’ law did not apply to legislative action. It only applied to executive action, and basically they said period, we’ll stop there, and, therefore the community lost.
The question of whether the school board acts in all three capacities –visual capacity, legislative capacity, and an executive capacity – was not either addressed by the Court or, actually, it was not addressed by counsel.
At any rate, by 2008 that lawsuit had completed, and the process to develop Rice Field continued.
Members of the community circulated a petition, gathered over a thousand signatures, which was submitted to the City of Des Moines, urging that the City – that the field not be developed. That was entered in the first PUD proceedings.
Fortunately, for the Boesens, Mr. Coleman was city councilman, and the efforts to change the zoning from Rice Field, which was originally R-160, single-family residence to PUD mixed-use received a favorable reception by the school board.
Citizens actually prevailed before the Plan and Zone commission - - zoning commission, arguing that PUD was - - the original PUD was not in character with the surrounding areas.
The arguments, as exactly submitted, are shown in Exhibit No. 13, which is the - - which were the arguments of the Petitioners and others submitted by their council at the march 2007 hearing. It was basically a slide presentation with talking points.
The developer did not receive enough votes to carry the recommendation of the plan and zoning commission. They felt that the development did not match the character of the neighborhood, and so it proceeded to the city council without the plan and zoning recommendation.
As I indicated, looking at Exhibit 1 and the aerial photographs. That the area surrounding Rice Field is overwhelmingly R – 1 single-family housing, and that it was argued that the development was an encroachment on this protected residential corridor, in violation of the 2020 plan.
The developer before the council shifted the focus of their argument, Rice partners at that time argued that the mixed use nature of the proposed development made the plan in accordance with the comprehensive plan because the mixed uses included seven condominiums sometimes called cluster homes attached at the edge giving every appearance of a story-and-a-half Beaverdale brick. In addition to the condos, there was a plan for 13 row houses along Beaver Avenue.
These elements, the developer maintained, were in the scale of the housing surrounding the area. The development was touted as providing 70 yards of accessible green space and was likened to the length of a football field, although its width was not mentioned.
The plan provided for a community gathering area on Beaver/Adams Avenue designated as a plaza. Retail building on Adams, although privately owned, were argued to serve the public at large and should be considered augmenting public spaces.
And at page 3 of the Petitioners’ brief, Your Honor, we cite to the record those particular arguments by the developer at the March 2007 hearing.
Exhibit 10 is a copy of the Boesens’ application for rezoning.
Exhibit 11 is a drawing of the proposed development plan under the original PUD. In the background you can see the sort of individual story-and-a-half housing.
Exhibit 12 is a copy of the consent map, the red indicating the objectors, gren indicating the people that dissented to the development. Of all the properties, the percentage is 66 percent objected and – but as to those people that responded, it was 34 to 3.
As I said, Exhibit 13 were the arguments of the Petitioners and other citizens.
On August of 2008, the Boesens voluntarily abandoned their development plans due to the untimely death of Mr. Edward Boesen, and Exhibit 15 is a newspaper article which indicates that the Boesens were abandoning - - intending to abandon their development due to the death of Mr. Edward Boesen.
Also, as I mentioned before, in 2008 the court of appeals ruled against the objectors on the claim of the school board violating the open meetings law.
Now, I direct the attention of the Court to Exhibit No. 21, which is a section of the Des Moines Municipal Code that is relevant to PUDs.
This section of the Code is 134, and I will refer to them as the last three digits. 693 to 695 concerns a conceptual plan, requirement of conceptual plan, and 696 to 699 concerns what is called a “development plan.” And 696, specifically, requires the submission of the development plan within two years after the conceptual plan.
Section 708 provides that in the event the developer fails to submit a development plan, a hearing shall – underline or emphasize the “shall” – be scheduled before the plan and zoning commission regarding the failure. And the zoning commission shall consider all the circumstances and shall vote the appropriate remedial measures to be initiated, which are to include two: Either the reversion of the property to R-1 or to its previous zoning, which in this case would be R-160, or to direct the city council to bring action for enforcement of the PUD>
At the 2013 hearing, which we’re here to consider, the alleged legalities, the objectors complain about the failure of both the plan and zoning commission and the city council to remedy the failure of the Rice development partners to develop Rice Field and return the property to R -160 to the new PUD rather than merely a change in part of the conceptual plan.
Now, after the Boesens failed to make the development and they pulled out of the sale, the City sold the property again. This time it went to the highest bidder, which is the principal of the intervener in this case.
The intervener applied to amend the PUD conceptual plan, which Boesens had put in place. The plan and zoning commission approved the amendment, voting over the objections of some of its members that the zoning action – one, that this was zoning action and the zoning rules were necessary to apply: and, two, that the zoning commission had failed to take remedial relief on measures required by the statute.
Nonetheless, the plan and zoning commission recommended the proposal, proceeded to the city council with their recommendations, and was heard \by the City in march of – I’m sorry, November 2013.
The attorney for the surrounding property owners brought to the council’s attention the plan and zoning commission’s failure to remedy the default or propose a remedy for the default and the city council’s failure to follow up on that. And the City responded that lots of PUDs are left undeveloped and nothing is done.
It was the Petitioners’ position, well, even though there’s lots of PUDS left unresolved, that’s illegal. And, therefore, the Petitioners’ were overruled. But the Petitioner in this case are asking the Court that it impose a remedy in its -- to this cause that is joined to the writ, that the property be, in fact, designated R-160, and that any development be taken from that status of the property rather than the current PUD that was originally placed on the property.
The only other remedy that would be available would be specific enforcement, which would be completely impractical, so the return of the property of R-60 would be an appropriate remedy.
Section 700 in Exhibit 21 governs the amendment of a PUD conceptual plan. The provision provides that the proposed amendment should be resubmitted in the same manner as the original conceptual plan. So the Petitioners argue before the council that the original conceptual plan constituted zoning, and so that the amendment of the conceptual plan constituted an amendment to zoning.
And the procedure for amending zoning should apply, and the substantive law of zoning should apply.
The city staff, zoning staff, and the attorneys for the City cited King v. The City of Cedar Rapids, 537 N.W. 2d 718, (Iowa 1995). They cited that the case as authority for the proposition that action amending conceptual ;loan was not zoning, and the council agreed. It is – this is, perhaps, the central point in this particular case or the central disagreement in this case.
Petitioners argue that the reliance on hand by the City is misplaced, and the reason for that is that in King the city council was confronted with a request to amend the site development plan under a standard Euclidean zoning ordinance – I believe it was R-3 or R-2 – which allowed for multifamily living, construction from one story to several stories.
The land in question was originally zoned as single-family housing. The developer obtained rezoning of the property to multifamily housing. The ordinance permitting multifamily structures permitting many concepts and local residents were not in opposition because the plan that the developer was touting was of some nice single-story condos, and they liked it.
Nonetheless, the development fell through after the zoning was allowed, and a second developer proposed putting a church complex on the site, and that met with the community’s approval. The community was -- the case notes was historic designated community.
But the church complex fell through, and a third developer submitted a site development plan for the construction, this time of a high-rise condominium. And the neighbors in the historic neighborhood basically went ballistic and challenged the plan that it did not proceed as a zoning amendment and zoning principles were not applied, and they lost at the district court.
And the Iowa Supreme Court upheld the district court, saying that the – that the change in the site development plan was merely a resolution of the City to assure – and review by the City to assure compliance with regulations and other various city codes and regulations relating to such matters as the design of the building, the landscape data, the engineering data and other factual information relating to the intended development of the property.
The Supreme Court noted that the city council acts by regulation, motion or ordinance, and in this case this was administrative in nature. It was a mere resolution, and it was just merely part of the good mechanics of enforcing the City’s zoning ordinance.
But the most important point of it is that the zoning ordinance permitted both the original condominium concept and the high-rise concept.
In the Des Moines PUD ordinance, which I set out again in Exhibit No. 21, there is absolutely no indication of what may be built, what designs, how many stories, anything about what may be built in the PUD.
The Des Moines PUD ordinance merely sets out the procedure for implementing PUD, but it doesn’t provide for any of the substantive restraints or restrictions on the use of property.
The Supreme Court has said it doesn’t matter what you call actions by the city council, it’s what you’re actually doing, and that when you – when you set out building restrictions to a particular set of site, that that is an ordinance.
The application of an ordinance and designating a particular site as having particular restrictions, building restrictions on it, is an act of making an ordinance with regard to that particular property, and that as a result, in Court, in addition , states that the PUD must be in compliance and measured against certain standards.
And so the standards would be the – the initial PUD would be the community comprehensive plan, and the PUD would then inform people by placing restrictions on record of the conceptual plan. The PUD would thereby inform the public of the nature of the restrictions
And this is important because an ordinance is only constitutional -- it is unconstitutionally vague if it does not – if it’s not sufficiently definite enough to warn of the prescribe conduct. And so the PUD chapter of the municipal code without more would be unconstitutionally vague if id did not incorporate as the actual zoning ordinance the restriction contained in the conceptual plan.
And so if the PUD doesn’t provide any guidance as to the ordinary use of the restrictions, the Petitioners assert that it’s unconstitutionally vague.
The ordinance really only can be saved from constitutional infirmity if the application of the ordinance renders the ordinance sufficiently definite to provide notice of the restrictions since the conceptual plan provides the use restrictions, adoption or amendment to the conceptual plan is, in fact, zoning action.
Application of the legal principles applicable to zoning involve almost an identical analysis, and that is that the city council acts arbitrarily and capriciously if it acts without regard to law or fact. So if it does not act according to zoning principles or it does not employ zoning procedure, it acts arbitrarily and capriciously.
As stated another way, if the PUD ordinance vest unbridled discretion in the city council, a for sure eye, the action pursuant to the PUD is arbitrary and capricious.
And so when the Des Moines City Council approved or at least took under consideration the new proposal for a PUD, what they were doing was imposing new use restrictions on Rice Field after it approved the original plan. And by amending the conceptual plan, it engaged zoning action.
And what they had done, though, was they – as was pointed out by the Petitioners’ counsel, the City ruled that this was not zoning neither the procedure applied nor the substantive law regarding zoning applied.
What I interpret as the substance of law would be those principles both in the 2020 plan and by statute against which compliance – they present the standards of which compliance of the PUD is judged. Generally, those – the city council votes became irrelevant. And the best example of threating those – the principle as a development is that council member Halley Griess said that – at the council meeting that since this was not zoning action, he didn’t believe that the City had even authority to tell a developer how to develop its own property.
So it clearly shows that the council member simply abandoned all principles of zoning law that are in place to guide a municipality in making zoning determinations.
Since the zoning was not an issue for them, neither was the public welfare or the character of the neighborhood or housing values or anything that is set forth in the Iowa Code regarding zoning or in the Des Moines Municipal Code and the 2020 plan.
The consent map shown at Exhibit No. 22, a few more people objected to the second plan, the current plan that we’re considering, and it clearly – again, 66 percent of all the property owners and only one property owner consented, 66 percent of all property owners in the vicinity objected.
The 414.5 of the Code of Iowa provides that if 20 percent of the landowners object, then the council – when the council acts, it must act on a four-fifths majority. The Des Moines Municipal Code takes that one step further and states – I’m sorry, the statute requires 75 percent, three-quarters.
The Des Moines Municipal Code requires it to go to four-fifths, and council ruled that it would proceed merely on the majority vote, and that is going to affect –obviously, have an effect on the voting patterns because if you’re bound to lose because there’s going to be a majority, you may not vote, whereas, you might vote against it if it is the deciding vote. Two votes would have been required to defeat the measure.
So the procedure became integral to the council’s action. But, again, more importantly is the fact that nothing in the 2020 plan, character of the neighborhood, all the principals of the 2020 plan, the protective nature of the residential corridor, the R-1 housing, none of that became of any interest or concern to the City because they felt that they were just tweaking the plan and not undertaking zoning action.
That is the primary illegality that the Petitioners allege, and it is the primary theory of the recovery in the case.
We have an alternative theory of recovery, and that is that the city council in authorizing this pan had engaged in spot zoning. In view of the cases indicate that a PUD almost by definition is spot zoning. It is taking a spot and zoning it differently, particularly if it it’s zoned according to a particular plan rather than twat is otherwise around in the community. If the zoning within the community were sufficient for the developer, they wouldn’t need the PUD. So, by definition it’s spot zoning.
Of course, the question in not merely whether they are spot zoning or whether it’s illegal. And it’s illegal, under the strict set of circumstances laid down by the Iowa Supreme Court, and that is essentially that it is arbitrary and capricious, it’s an abuse of council power and authority if it bears no relation to the comprehensive plan.
The action by the city council in this case does, if fact, bear no relation to the comprehensive plan. It does not protect. It’s a three story single apartment building, which –the drawing of which can be seen at Exhibit No. 18. Nothing in the area is three stories. It’s surrounded by single-family housing. It’s completely out of character with the surrounding area, though we concede that across the street, the end of the commercial zone, there is that senior living apartment which is tow stories plus a basement window exit story as well.
Again, since the city council said its zoning action was not involved and they ignored the provisions of the comprehensive plan, their conduct, their decision, was, by definition, arbitrary and capricious because it was in complete disregard of the law. No reason for distinguishing between the general character of the community and this particular plan was offered.
For a concise argument of why the developer’s plan is in accordance with the comprehensive plan, the Petitioners’ attorney remarks at the first hearing note to the Court are in the record of the March 2007 hearing, which, of course, are shown in their entirety at Exhibit 13. And the remarks of city council in November 2013, written remarks, were submitted and received by the council detailing the failure of the PUD to comply with the comprehensive plan. The developer cannot make a single argument as to its – the comprehensive plan and how the development fit into it, and no council member made an argument or statement as to why the comprehensive plan was applicable or any principle of the comprehensive plan was applicable.
And, as I said before, the city council specifically stated that this was not zoning action and did not have to proceed. So council members flatly stated that they should defer to the developer and not interfere with what a developer wants to do with their land.
The Petitioners added an equal protection argument in the petition for writ of certiorari. The equal protection argument really is exactly the same as the – or analysis is exactly the same as the spot zoning analysis. Essentially spot zoning is denial of equal protection of laws.
The seminal case for zoning, in particular, the constitutionality of zoning, is that e City of Euclid, Ohio v. Ambler Realty Company, 272 United States Reports 365, and that case was decided in 1926. And the case is surprisingly prescient of the situation that we are facing in Beaverdale. And I would like to quote from that case because I think it sets out the injury that Petitioners have sustained by this development.
And I quote from that case, “The matter of the zoning has received much attention at the hands of commissions and experts, and the results of their investigations have been set forth in comprehensive reports. These reports, which bear every evidence of painstaking consideration, concur” – and there’s some extraneous material that I’ve omitted – “with particular reference to apartment houses, it is pointed out that the development of detached house sections is greatly retarded by the coming of apartment houses, which has sometimes resulted in destroying the entire section for private house purposes; that in sections very often the apartment house is a mere parasite, constructed in order to take advantage of the open spaces and attractive surroundings created by the residential character of the district. Moreover, the coming of one apartment house is followed by other, interfering by their height and bulk with the free circulation of air and monopolizing the rays of the sun which otherwise would fall upon the smaller homes, and bringing, as their necessary accompaniments, the disturbing noises incident to increased traffic and business, and the occupations, by means of moving and parked automobiles, of larger portions of the streets, thus detracting from their safety and depriving children of the privilege of quiet and open spaces for play, enjoyed by those in more favored localities until, finally the residential character of the neighborhood and its desirability as a place of detached residences are utterly destroyed. Under these circumstances, apartment houses, which in a different environment would be not only entirely unobjectionable but highly desirable, come very near to being nuisances.”
United State Supreme Court.
In conclusion, Your Honor, the action of the Des Moines City Council, which Petitioners complained to be aggrieved, constitutes zoning. The council and its lawyers emphatically, but incorrectly stated at the hearing during November of 2013, the proceeding did not involve zoning. That the council and its staff and its lawyer declared to the assembled constituency, including the Petitions, that procedural requirements which attached to zoning actions well as substantive zoning principles did not apply to their decision regarding a requested amendment.
Zoning action conducted to avoid a procedural requirement and of substantive principles required by statute, Iowa and Federal Constitution and case law, cannot be sustained.
As I indicated on Wednesday, the judiciary bends over backwards to afford elected officials and the electorate the freedom to engage in the conflict of attendee to government by representative democracy unrepeated by hovering referees in judicial roles
Through accumulated case, law, the Iowa Supreme court has demonstrated the bounds of judicial tolerance to the business of democracy are almost limitless. But in this case a municipality thumbs its nose at the legislature and the judiciary and the electorate by acting heedless of simple fundamental principles of law constructed to give a semblance of attentive and deliberative representative of government acting in furtherance of the general welfare. The offending government body must be called to account for its misconduct.
For those reasons, Your Honor, we would urge the Court to find that the council’s approval of the current PUD is illegal, that it should not be sustained, and that the writ should be sustained and that the equitable relief joined the petition specifically mandamus to zone property, turn the zoning on the property to R -160, and any further consideration of development should follow – should be in accordance with the comprehensive plan as required by the statute.
That ends our argument at this time.
Update on Litigation, August 2014
The litigation regarding Rice Field is to be at trial August 18, 2014, 9:00 a.m. at the Polk County Court House, room 408. Those interested in this judicial process are invited to attend this trial.
At its meeting in November, 2013, the members of the Des Moines City Council made no reference to any principal of the comprehensive plan to support the zoning change; nor did the developer. The City has not brought forward an argument based on conformity to the comprehensive plan, even now. The City has countered the plaintiffs’ complaint by arguing that the action of the City Council was not zoning action at all. The municipality, its lawyers said, merely tinkered with the drawings and specifications of the original plan of Rice Development Partners, LLC approved in 2007.
The plaintiffs responded that Rice Field is zoned as a PUD (planned unit development), and a PUD classification does not list building concepts permitted in, or restricted to, a particular zone, as does typical Euclidean zones. The plaintiffs argue that land use restrictions of a PUD are found in the specifications of the development proposal. Without those specifications, the PUD is a blank slate. A zoning ordinance which is a blank slate provides absolutely no information about use restrictions, and would be unconstitutional. The Iowa Supreme Court has periodically reminded municipalities that zoning is governed by constitutional principles articulated by the United States Supreme Court. One of those principles is that a zoning ordinance must be sufficiently specific for the public to be able to discern what is permitted, and what is prohibited. Thus, in order to be constitutional, the specifications of a PUD development proposal approved by a city council must constitute the substance of the zoning ordinance. It follows that a change in the development specifications constitutes a change in zoning.
The district court has ordered the City of Des Moines to produce the record of the November 2013 council meeting for review by the court. It also ordered the City to produce the record of the council meeting at which the City rezoned Rice Field PUD. The next step will be to schedule a trial date.
At its meeting in November, 2013, the members of the Des Moines City Council made no reference to any principal of the comprehensive plan to support the zoning change; nor did the developer. The City has not brought forward an argument based on conformity to the comprehensive plan, even now. The City has countered the plaintiffs’ complaint by arguing that the action of the City Council was not zoning action at all. The municipality, its lawyers said, merely tinkered with the drawings and specifications of the original plan of Rice Development Partners, LLC approved in 2007.
The plaintiffs responded that Rice Field is zoned as a PUD (planned unit development), and a PUD classification does not list building concepts permitted in, or restricted to, a particular zone, as does typical Euclidean zones. The plaintiffs argue that land use restrictions of a PUD are found in the specifications of the development proposal. Without those specifications, the PUD is a blank slate. A zoning ordinance which is a blank slate provides absolutely no information about use restrictions, and would be unconstitutional. The Iowa Supreme Court has periodically reminded municipalities that zoning is governed by constitutional principles articulated by the United States Supreme Court. One of those principles is that a zoning ordinance must be sufficiently specific for the public to be able to discern what is permitted, and what is prohibited. Thus, in order to be constitutional, the specifications of a PUD development proposal approved by a city council must constitute the substance of the zoning ordinance. It follows that a change in the development specifications constitutes a change in zoning.
The district court has ordered the City of Des Moines to produce the record of the November 2013 council meeting for review by the court. It also ordered the City to produce the record of the council meeting at which the City rezoned Rice Field PUD. The next step will be to schedule a trial date.
Plaintiffs' Conclusion: Change in Concept is a change in Zoning.
On 17 January 2014, a hearing was held before Judge S. Rosenberg on the law suit against the City of Des Moines, brought by residents of Beaverdale to correct the action of the City of Des Moines taken on 18 November 2013, at which the city changed the land use of Rice Field. The hearing was to determine how far back in time the city must go when it produces records concerning zoning action on Rice Field. The neighbors argued that the current development proposal must be judged in light of the concept of the first development proposal, as well as the justification for its departure from R1-60 zoning. The city argued that no zoning change actually occurred on 17 November, because the conceptual change from a "village within a village" (a composition of row houses, cluster homes, apartments over retail stores, and a community gathering area) to a single monolithic apartment building was merely a technical change in the conceptual drawings. The neighbors countered that PUD developments are blank slates without their development concepts. And, zoning devoid of specifications constitutes an unconstitutionally vague ordinance. So, in order for the zoning to be constitutional, the development concept must be considered as establishing the land use parameters. This means that the development concept defines the nature of the zoning of Rice Field. The neighbors conclude that a fundamental change in concept is a change in zoning, when judging PUD’s.