Presentation to Plan and Zoning , Motion for Remedy at Rice Field, City Ordinance Allowing Motion
Presentation to Plan and Zoning by Friends of Rice Field, Oct 17, 2013
Prepared and presented by Bruce Butler
Zoning is about balancing stability with change. We should attempt to preserve the best features of our community while progressively upgrading features that are in need of improvement.
Zoning is also about the welfare of our community as a whole, and not about the welfare of any one property owner or even a group of property owners.
The Iowa Supreme Court instructs us:
A property owner does not have a vested right in the continuation of a particular zoning classification. In reviewing an ordinance, we are predominantly concerned about the general purpose of the ordinance, not any hardship that may result in an individual case. (Quality Refrigerated Servs. Inc, v. Ciety of Spencer, 586 N.W. 2nd 202
The Iowa legislature tells us: Section 18b1 Iowa smart planning principles
7. Community Character. Planning, zoning, development, and resource management should promote activities and development that are consistent with the character and architectural style of the community and should respond to local values regarding the physical character of the community.
In order to decide whether a zoning change in a developer’s mind fosters the welfare of our community, we should have a good understanding of where we have been and the direction the community wishes to go.
In regard to the present request for a zoning change, an ordinance of the City of Des Moines makes the history of Rice Field particularly relevant to our discussion this evening.
The ordinance that requires an evaluation of the history of Rice Field is:
Section 134-708. Failure to submit development plan or to commence construction.
If the developer fails either (i) to submit a development plan within the time requirements of section 134-696 of this division or (ii) to commence construction in accordance with the time schedule set forth in the development plan, a public hearing shall be scheduled before the plan and zoning commission regarding such failure, and the developer shall be served prior notice thereof by certified mail. At such meeting the commission shall consider all circumstances relevant to the developer’s failure and shall vote to recommend to the city council that appropriate remedial measures be initiated, which measures may include (i) the initiation of rezoning of the subject property to the zoning classification effective immediately prior to the rezoning of the subject property to a PUD district classification, and/or (ii) referral of the matter to the legal department for institution of enforcement proceedings in the courts pursuant to section 134-31 and 134-32. Upon receipt of the recommendations of the commission, the city council shall act to initiate remedial measures in conformity to the commission’s recommendations or to initiate such other remedial measures as the council determines to be reasonably necessary under the circumstances.
(0.10,726, 10,843, 10,927, 11,833, 12,067, 13,015, 13,081: C91, & 2A-14.01 (Q)
SO, WE BELIEVE THAT THE ISSUE BEFORE THE BOARD IS WHAT REMEDY SHOULD BE RECOMMENDED TO THE CITY COUNCIL FOR THE PUD/MIXED-USE CLASSIFICATION PLACED ON THE PROPERTY.
The Iowa Supreme Court guides us by the following requirement:
Zoning must be in accord with a comprehensive plan. Holland v City Council of Decorah, 622 N.W.2d 681. 685 (Iowa 2003). Iowa Code section 414.3 requires that zoning regulations should be made in accordance with a comprehensive plan. Wolf v City of Ely, 493 N.W.2d 846, 847( Iowa 1992). Sojka v. Zoning Board of Adjustment for Harlan, No. 5-062/03-1227 (IA 4/28/2005) (IA, 2005)
As in the Sojka case, in Beaverdale, there has never been a suggestion that zoning the area R-1 Residential district was not in accord with the comprehensive plan.
We appeared before this body previously, in opposition to the last request for a change in zoning to Planned Unit Development, mixed use.
In a nutshell, our arguments were that this portion of Beaver Avenue was designated a residential protective corridor by the comprehensive plan, and for a litany of reasons, delineated in the City’s comprehensive plan, zoning should be restricted to R – 1 single family dwellings. The primary reason is that apartments and commercial infill adjacent to large single family homes, built as early as 1915, with large front lawns were best served, according to the comprehensive plan, by R-1 infill. Apartments and commercial buildings would lead to degradation of the R – 1 housing and eventual loss of the residential corridor. The benefit of a residential corridor over a commercial corridor is that it introduces the residential nature of the community, slows traffic and is pedestrian friendly.
From the prospective of Beaverdale as a whole, the current PUD violates every zoning principle articulated in the comprehensive plan, designed to protect single family residential neighborhoods.
It is noteworthy to remind this Board and the public that Rice Field had been formally designated as a public park by a duly constituted governmental entity.
Accordingly, the last time we appeared before this board, we gave an exhaustive presentation about the benefits of urban parks that Rice Field offers based upon the research of the National Trust of Public Land in Washington, D.C. The research found unequivocally that urban parks have a transformational effect on urban living--for the better. They increase property values, encourage community renewal, and provide cohesiveness. They promote wellness both physical and psychological. The overwhelming evidence gathered by research around the country, as well as Iowa Law and our City ordinances, prove beyond doubt that a park or schoolyard is the best use for Rice Field, as it has the potential to provide for the welfare of the community in diverse ways, including an increase in home values. It is obvious that development that results in the loss of parkland under any PUD is detrimental to home values and to the wellbeing of the community.
Further, it is a well-documented fact that healthy urban living requires ten acres of parkland per thousand of population. Beaverdale of Ward 1/ Northwest Ward has the least amount of public parkland in the Metro area at 2 acres per thousand. The Northeast Ward has 9 acres per thousand/population. The Southeast Ward has 14 acres per thousand/population. The Southwest Ward has 42 acres per thousand/population.
The Iowa Supreme Court considers a PUD to be zoning—period. An amendment to a PUD is a change in zoning. The process the City of Des Moines utilized when approving the change in zoning for the current PUD-mixed use was to change the underlying zoning, and then enact the PUD-mixed use one minute later. The two steps to do this are effectively a single action in order to change the zoning from R – 1 to PUD-mixed use. We urge the board to recommend that the zoning return to the classification before the PUD-mixed use was adopted and return to R – 1 Residential.
Molo Oil vs Dubuque; 692 NWS 690 (2005).
Sutton vs Dubuque; 729 NW2 796 (2006)
Finally, a quote--amendment to the PUD--unquote does not comport with the comprehensive plan, and does not serve the welfare of the neighborhood.
The only poll of the community ever made was the scientific Essman Survey that showed that 75% of the community wanted an enhanced park at Rice Field; 67% wanted Rice Field to be left alone as green space. The Beaverdale community completely rejected senior housing as a use for Rice Field. Senior housing was said to not be a “good fit” for the community. In fact, Ewing Development was not even allowed to present their proposal at the meeting held at Hoover High School (2006).
A single-use, multi-residential block building, with its back to the community where trees are not planted to separate pedestrians from traffic implements no principles of the comprehensive plan relating to a residential neighborhood predominately R- 1 in nature. Under the new proposal, Rice Field would go from “open-to-the-public” as a designated park to being closed to the public.
Finally additional senior housing is not needed in Beaverdale. Only 5% of elderly leave their homes. The overwhelming numbers within this 5% are people with chronic health problems, and/or physical/ psychological complications. The Minnesota senior cooperative portrayed as an example of a successful development for seniors by Ewing Developer, is now converting to a continuum care facility because that is what seniors who leave their homes need. 55 year-olds and other healthy seniors are not leaving their homes in significant numbers.
Prepared and presented by Bruce Butler
Zoning is about balancing stability with change. We should attempt to preserve the best features of our community while progressively upgrading features that are in need of improvement.
Zoning is also about the welfare of our community as a whole, and not about the welfare of any one property owner or even a group of property owners.
The Iowa Supreme Court instructs us:
A property owner does not have a vested right in the continuation of a particular zoning classification. In reviewing an ordinance, we are predominantly concerned about the general purpose of the ordinance, not any hardship that may result in an individual case. (Quality Refrigerated Servs. Inc, v. Ciety of Spencer, 586 N.W. 2nd 202
The Iowa legislature tells us: Section 18b1 Iowa smart planning principles
7. Community Character. Planning, zoning, development, and resource management should promote activities and development that are consistent with the character and architectural style of the community and should respond to local values regarding the physical character of the community.
In order to decide whether a zoning change in a developer’s mind fosters the welfare of our community, we should have a good understanding of where we have been and the direction the community wishes to go.
In regard to the present request for a zoning change, an ordinance of the City of Des Moines makes the history of Rice Field particularly relevant to our discussion this evening.
The ordinance that requires an evaluation of the history of Rice Field is:
Section 134-708. Failure to submit development plan or to commence construction.
If the developer fails either (i) to submit a development plan within the time requirements of section 134-696 of this division or (ii) to commence construction in accordance with the time schedule set forth in the development plan, a public hearing shall be scheduled before the plan and zoning commission regarding such failure, and the developer shall be served prior notice thereof by certified mail. At such meeting the commission shall consider all circumstances relevant to the developer’s failure and shall vote to recommend to the city council that appropriate remedial measures be initiated, which measures may include (i) the initiation of rezoning of the subject property to the zoning classification effective immediately prior to the rezoning of the subject property to a PUD district classification, and/or (ii) referral of the matter to the legal department for institution of enforcement proceedings in the courts pursuant to section 134-31 and 134-32. Upon receipt of the recommendations of the commission, the city council shall act to initiate remedial measures in conformity to the commission’s recommendations or to initiate such other remedial measures as the council determines to be reasonably necessary under the circumstances.
(0.10,726, 10,843, 10,927, 11,833, 12,067, 13,015, 13,081: C91, & 2A-14.01 (Q)
SO, WE BELIEVE THAT THE ISSUE BEFORE THE BOARD IS WHAT REMEDY SHOULD BE RECOMMENDED TO THE CITY COUNCIL FOR THE PUD/MIXED-USE CLASSIFICATION PLACED ON THE PROPERTY.
The Iowa Supreme Court guides us by the following requirement:
Zoning must be in accord with a comprehensive plan. Holland v City Council of Decorah, 622 N.W.2d 681. 685 (Iowa 2003). Iowa Code section 414.3 requires that zoning regulations should be made in accordance with a comprehensive plan. Wolf v City of Ely, 493 N.W.2d 846, 847( Iowa 1992). Sojka v. Zoning Board of Adjustment for Harlan, No. 5-062/03-1227 (IA 4/28/2005) (IA, 2005)
As in the Sojka case, in Beaverdale, there has never been a suggestion that zoning the area R-1 Residential district was not in accord with the comprehensive plan.
We appeared before this body previously, in opposition to the last request for a change in zoning to Planned Unit Development, mixed use.
In a nutshell, our arguments were that this portion of Beaver Avenue was designated a residential protective corridor by the comprehensive plan, and for a litany of reasons, delineated in the City’s comprehensive plan, zoning should be restricted to R – 1 single family dwellings. The primary reason is that apartments and commercial infill adjacent to large single family homes, built as early as 1915, with large front lawns were best served, according to the comprehensive plan, by R-1 infill. Apartments and commercial buildings would lead to degradation of the R – 1 housing and eventual loss of the residential corridor. The benefit of a residential corridor over a commercial corridor is that it introduces the residential nature of the community, slows traffic and is pedestrian friendly.
From the prospective of Beaverdale as a whole, the current PUD violates every zoning principle articulated in the comprehensive plan, designed to protect single family residential neighborhoods.
It is noteworthy to remind this Board and the public that Rice Field had been formally designated as a public park by a duly constituted governmental entity.
Accordingly, the last time we appeared before this board, we gave an exhaustive presentation about the benefits of urban parks that Rice Field offers based upon the research of the National Trust of Public Land in Washington, D.C. The research found unequivocally that urban parks have a transformational effect on urban living--for the better. They increase property values, encourage community renewal, and provide cohesiveness. They promote wellness both physical and psychological. The overwhelming evidence gathered by research around the country, as well as Iowa Law and our City ordinances, prove beyond doubt that a park or schoolyard is the best use for Rice Field, as it has the potential to provide for the welfare of the community in diverse ways, including an increase in home values. It is obvious that development that results in the loss of parkland under any PUD is detrimental to home values and to the wellbeing of the community.
Further, it is a well-documented fact that healthy urban living requires ten acres of parkland per thousand of population. Beaverdale of Ward 1/ Northwest Ward has the least amount of public parkland in the Metro area at 2 acres per thousand. The Northeast Ward has 9 acres per thousand/population. The Southeast Ward has 14 acres per thousand/population. The Southwest Ward has 42 acres per thousand/population.
The Iowa Supreme Court considers a PUD to be zoning—period. An amendment to a PUD is a change in zoning. The process the City of Des Moines utilized when approving the change in zoning for the current PUD-mixed use was to change the underlying zoning, and then enact the PUD-mixed use one minute later. The two steps to do this are effectively a single action in order to change the zoning from R – 1 to PUD-mixed use. We urge the board to recommend that the zoning return to the classification before the PUD-mixed use was adopted and return to R – 1 Residential.
Molo Oil vs Dubuque; 692 NWS 690 (2005).
Sutton vs Dubuque; 729 NW2 796 (2006)
Finally, a quote--amendment to the PUD--unquote does not comport with the comprehensive plan, and does not serve the welfare of the neighborhood.
The only poll of the community ever made was the scientific Essman Survey that showed that 75% of the community wanted an enhanced park at Rice Field; 67% wanted Rice Field to be left alone as green space. The Beaverdale community completely rejected senior housing as a use for Rice Field. Senior housing was said to not be a “good fit” for the community. In fact, Ewing Development was not even allowed to present their proposal at the meeting held at Hoover High School (2006).
A single-use, multi-residential block building, with its back to the community where trees are not planted to separate pedestrians from traffic implements no principles of the comprehensive plan relating to a residential neighborhood predominately R- 1 in nature. Under the new proposal, Rice Field would go from “open-to-the-public” as a designated park to being closed to the public.
Finally additional senior housing is not needed in Beaverdale. Only 5% of elderly leave their homes. The overwhelming numbers within this 5% are people with chronic health problems, and/or physical/ psychological complications. The Minnesota senior cooperative portrayed as an example of a successful development for seniors by Ewing Developer, is now converting to a continuum care facility because that is what seniors who leave their homes need. 55 year-olds and other healthy seniors are not leaving their homes in significant numbers.
Stogdill's Motion--Remedy to Redeem the Process at Rice Field
Several board members on Plan and Zoning are cognizant of the process to void the PUD on Rice Field:
"It sounds like we failed to exercise our right to void the existing PUD back in June [2010] and I'ld like to make a motion that we do that tonight. We can recommend that the City Council do that and have the public hearing to do that ...
....that I should give justification for that...this is not appropriate for the neighborhood and I think that if we do deny it tonight , I think the City should reconsider buying the property....I will restate it then. My motion would be to deny the request and to recommend that council, that they consider again purchasing the property and prior to that they probably need to rezone or void the existing PUD."
--Vicki Stogdill, member of the Plan and Zoning Commision
October 17, 2013 Plan and Zoning Hearing to amend PUD on Rice Field
"It sounds like we failed to exercise our right to void the existing PUD back in June [2010] and I'ld like to make a motion that we do that tonight. We can recommend that the City Council do that and have the public hearing to do that ...
....that I should give justification for that...this is not appropriate for the neighborhood and I think that if we do deny it tonight , I think the City should reconsider buying the property....I will restate it then. My motion would be to deny the request and to recommend that council, that they consider again purchasing the property and prior to that they probably need to rezone or void the existing PUD."
--Vicki Stogdill, member of the Plan and Zoning Commision
October 17, 2013 Plan and Zoning Hearing to amend PUD on Rice Field
The City of Des Moines Ordinance Backing Stogdill's Motion
Section 134-708. Failure to submit development plan or to commence construction.
If the developer fails either (i) to submit a development plan within the time requirements of section 134-696 of this division or (ii) to commence construction in accordance with the time schedule set forth in the development plan, a public hearing shall be scheduled before the plan and zoning commission regarding such failure, and the developer shall be served prior notice thereof by certified mail. At such meeting the commission shall consider all circumstances relevant to the developer’s failure and shall vote to recommend to the city council that appropriate remedial measures be initiated, which measures may include (i) the initiation of rezoning of the subject property to the zoning classification effective immediately prior to the rezoning of the subject property to a PUD district classification, and/or (ii) referral of the matter to the legal department for institution of enforcement proceedings in the courts pursuant to section 134-31 and 134-32. Upon receipt of the recommendations of the commission, the city council shall act to initiate remedial measures in conformity to the commission’s recommendations or to initiate such other remedial measures as the council determines to be reasonably necessary under the circumstances.
(0.10,726, 10,843, 10,927, 11,833, 12,067, 13,015, 13,081: C91, & 2A-14.01 (Q)
If the developer fails either (i) to submit a development plan within the time requirements of section 134-696 of this division or (ii) to commence construction in accordance with the time schedule set forth in the development plan, a public hearing shall be scheduled before the plan and zoning commission regarding such failure, and the developer shall be served prior notice thereof by certified mail. At such meeting the commission shall consider all circumstances relevant to the developer’s failure and shall vote to recommend to the city council that appropriate remedial measures be initiated, which measures may include (i) the initiation of rezoning of the subject property to the zoning classification effective immediately prior to the rezoning of the subject property to a PUD district classification, and/or (ii) referral of the matter to the legal department for institution of enforcement proceedings in the courts pursuant to section 134-31 and 134-32. Upon receipt of the recommendations of the commission, the city council shall act to initiate remedial measures in conformity to the commission’s recommendations or to initiate such other remedial measures as the council determines to be reasonably necessary under the circumstances.
(0.10,726, 10,843, 10,927, 11,833, 12,067, 13,015, 13,081: C91, & 2A-14.01 (Q)