Friends of Rice Field Presentation to City Council, Nov 2013
Mr. Mayor, Members of the Des Moines City Council:
My name is Bruce Butler. I am a member of Friends of Rice Field, a group of neighbors working to protect Rice Field from mal-development. If yard signs are any indication, we are 600 strong, only because we ran out of signs. The Essman survey taken in 2004 would indicate that we are in accord with 75% of the neighborhood. I wish to place in the record the petition signed by more than 400 people opposed to this development on Rice Field. I also wish to place into the record the comments from the public concerning preservation of Rice Field.
GOVERNING RULES OF PROCEDURE.
Section 415.5 of the Code of Iowa provides:
414.5 Changes — protest.
The regulations, restrictions, and boundaries may, from time to time, be amended, supplemented, changed, modified, or repealed. Notwithstanding section 414.2, as a part of an ordinance changing land from one zoning district to another zoning district or an ordinance approving a site development plan, a council may impose conditions on a property owner which are in addition to existing regulations if the additional conditions have been agreed to in writing by the property owner before the public hearing required under this section or any adjournment of the hearing. The conditions must be reasonable and imposed to satisfy public needs which are directly caused by the requested change. In case, however, of a written protest against a change or repeal which is filed with the city clerk and signed by the owners of twenty percent or more of the area of the lots included in the proposed change or repeal, or by the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the change or repeal is proposed, the change or repeal shall not become effective except by the favorable vote of at least three-fourths of all the members of the council. The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments.
[C24, 27, 31, 35, 39, §6456; C46, 50, 54, 58, 62, 66, 71, 73, 75, 77, 79, 81, §414.5]
84 Acts, ch 1176, §1; 85 Acts, ch 9, §2; 88 Acts, ch 1246, §8
Referred to in §657.9
Section 134-700 of the Des Moines Municipal Code provides for a 4 5th vote only if the Plan and Zone Commission does not recommend the proposal, or there is an increase in density.
In this regard, the Des Moines Municipal Code conflicts with the State statute, is illegal and should not control the Council’s action.
PHILOSOPHY OF ZONING MISUNDERSTOOD BY PUBLIC AND PUBLIC OFFICIALS:
Through these years of advocacy we have learned a lot about urban planning. We have also learned that the philosophy and rules governing urban planning are often misunderstood by the public and public officials. We have studied the different philosophies of municipalities such as Houston, Texas, which has no zoning ordinance, and manages growth through restrictive covenants. We have become acquainted with the abundance of criticism of land use planning being in the political arena, for as noted by William A. Fischel, Professor of Economics at Dartmouth College:
“Zoning is the product of a political process, and it serves the interests of those who control that process.”
Examples are abundant. There are few, if any, textbooks which can illustrate the validity of this observation, more than the process which led to the current PUD zoning of Rice Field.
Some of the comments made by Council members, in session as well as out of session, indicate that it is useful to review the basic principles of zoning law, before coming to a conclusion about rezoning of Rice Field. We have heard, for example, that notwithstanding the public welfare of open green space in an urban setting, once Rice Field came into private hands, the landowner should be allowed to develop his property, regardless of current zoning. This sentiment has been echoed in a statement that a private landowner should be able to develop his property as he likes, (presumably so long as it is not physically injurious to the community). We have heard it said that the comprehensive plan has no teeth. And, it is widely said that since Rice Field has been sold, development is a done deal.
Review of zoning history, philosophy and law:
So, I’d like to take a short digression to review the history, philosophy and rules governing your action tonight to address those of you who are concerned over restricting a landowner’s property interests. That is, my summary of zoning principles will have a particular emphasis on the philosophical legitimacy of this body imposing zoning restrictions on the owner of Rice Field.
Zoning has been with us since the dawn of history. Early Roman law addressed a need for protection against encroachments in certain areas and the spatial relationships of certain buildings to other structures. In Colonial America, the settlement of Jamestown separated certain activities from other activities. English Common Law is replete with cases effectively implementing zoning based on nuisance law.
Nevertheless, acceptability of land use controls in the United States was not immediate or universal. During the 19th Century, there was the tendency of the American courts to go to great lengths to assure that individual property rights were protected from arbitrary control of government. Public control of private land was not only uncommon; it was contrary to the independent, agrarian and enterprising values of the society which founded our country.
Early municipal planning was associated with relief from poor sanitary conditions associated with large cities and dense populations, brought upon by the industrial revolution. Inadequate waste disposal, lack of sunlight, and visual grimness were all associated with urban development. As the idea of public sewers came about, the physical locations of structures became important, as did development patterns. Building height and location became important as they related on a human scale. Also, great city fires made building codes and geographic compartments for containing fires necessary.
A response to the “ugliness” of urban life resulted in various urban reform movements that eventually converged into the City Beautiful movement, an outgrowth of the 1893 Columbian Exposition in Chicago. However, although City Beautiful was a definite forerunner of municipal planning, its efforts focused on the public space, not private property. Late in the nineteenth century, various municipal efforts to control private property, and the resulting litigation, began to lay the groundwork for modern municipal zoning of private property. Slowly, then with increasing traction, zoning was embraced in various parts of the country.
The seminal case holding that zoning was a legitimate exercise of the police powers of municipal governments was set down in a land mark ruling by The United States Supreme Court in THE VILLAGE of EUCLID, OHIO v. AMBLER REALTY CO., 272 U.S. 365 (1926). The Court said:
“building zone laws are of modern origin. They began in this country in the [1920’s]. Until [that time] urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained – [which] a century ago… probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. …their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.
In short, the justification for municipal zoning is the delegation of “police powers” by State governments to municipalities.
The most often quoted definition of the police power is that of Judge Cooley, in his work: Constitutional Limitations, 7th ed., p. 245. and is cited ad infinitum by State and Federal courts. Police Powers as described by Judge Cooley, is “the power to establish rules to prevent the conflict of rights.”
20th century shift to protection of residential communities:
The principal use of zoning laws during the 20th Century was to protect residential housing. This experience began to define what zoning was. The rationale for zoning typically offered in the economics literature is that some activities cause spillover effects on their neighbors and that the best way to deal with these spillovers is to employ police-power regulations to separate uses.
Modern PHILOSOPHICAL justification for zoning laws, beyond public sanitation, pollution and fire PROTECTION – CLASH OF RIGHTS.
Modern economic theories indicate that zoning is only partially about protecting individual property owners against the effects of "spillovers" or negative externalities that adversely affect the market values of individual properties. These economists argue that zoning protects what they term as “a homeowner's consumer surplus in a home and in the surrounding neighborhood.” Another term for this protected interest is “Public Commons,” or “Neighborhood Commons”
Neighborhoods are not just made up of individual parcels, but include collective resources comprising neighborhood commons, and the property rights of an urban neighborhood dweller typically consist both in specified rights in an individual dwelling and inchoate rights in a neighborhood commons. “Commons,” as the term is employed, consists of open-access of communally-owned property, such as streets, sidewalks, parks, playgrounds, and libraries. It also includes restricted-access but communally-owned property, such as public schools, public recreational facilities, and public transportation facilities. It also includes privately-owned property to which the public generally is granted access, such as restaurants, nightspots, theaters, groceries, and retail establishments. It includes: churches, temples, private schools, political organizations, clubs, and fraternal and civic organizations, although essentially private associations, are characterized by some substantial degree of open access to members of the community. Finally, the neighborhood commons include other intangible qualities such as neighborhood ambiance, aesthetics, the physical environment (including air quality and noise), and relative degrees of anonymity or neighborliness.
These features together make up the "character" of a neighborhood. They are what give the neighborhood its distinctive flavor. A purchaser of residential property in an urban neighborhood buys not only a particular parcel of real estate, but also a share in the neighborhood commons. Typically, differences in the neighborhood commons may be as crucial to a decision to purchase as differences in individual parcels.
Piecemeal devaluation of a community character is extremely difficult to protect against. Zoning is aimed at preventing, or at least limiting, precisely the kind of changes in the use of property which we are concerned with at Rice Field. The proposal is disruptive of a neighborhood's character because it is inconsistent with current uses of the neighborhood commons. These include changes in density, as well as shifts from single residential to apartment buildings.
If Rice field is allowed to be developed according to the proposed plan, homeowners in Beaverdale are forced to bear the full costs of lost consumer surplus. The neighborhood will become less stable. Homeowners, fearing potential risks, would have reduced incentives to invest in their homes and neighborhoods and greater incentives to move to areas where they perceive the risks of unwelcome development to be lower.
Zoning thus can be seen as a peculiar kind of property rule—one in which developers can in limited ways "buy" the rights to develop contrary to the zoning entitlement, but only by compensating the community for its loss.
Again, in answer to the traditional notion that a property owner should be free to use his property as he chooses: Zoning gives current neighborhood residents a kind of "right of prior appropriation" over the neighborhood commons. This right trumps the right of other property owners to use their land in ways that interfere with, or are inconsistent with, current uses of the neighborhood commons. Developments may proceed as long as they are either consistent with current uses of the neighborhood commons, or in ways the neighborhood has agreed in advance (through the political process) to allow. This protects the expectations of neighborhood residents.
The core functions of zoning can best be served if zoning is decentralized and participatory. A decentralized and participatory neighborhood zoning process, which gives neighborhood residents a direct voice in zoning decisions affecting their neighborhood, is critical for several reasons. First, neighborhood residents, not planners or elected officials, are in the best position to evaluate their own consumer surplus in their homes and in their neighborhoods. To the extent zoning is designed to protect these values, the most effective way to elicit that information is through residents' participation in neighborhood zoning decisions. Second, decentralized and participatory zoning is essential to shift zoning decision-making out of the "interest group" paradigm—in which neighborhood residents are just one of a number of competing interest groups, and a weak and disorganized one at that—into something more akin to the "median voter" model in which decision-making more clearly reflects neighborhood preferences. Third, citizen participation is essential to combat bribery and the corrupting influence of political contributions by developer interests.
THE COMMUNITY’S PREFERENCES:
DESIGNATED AS A PARK – RESERVED FOR A SCHOOL:
At the beginning of the process to consider the future of Rice Field, the Des Moines School District designated the land as a park, until it might be needed as a school. The demographic projections of the need for a neighborhood school projected this decade as pivotal. And anyone with an eye on Monroe School enrollment, knows that it is overflowing capacity.
The City of Des Moines and the Des Moines schools entered into a 28E agreement whereby the City would have the use of Rice Field as a park, and the Schools would have the use of Prospect park as a parking lot. Rice Field is no longer a park, but the schools still use prospect park as a parking lot. Who is looking out for the City’s financial interests, and conservation of park land?
COMMUNITY’S INPUT:
The community of Beaverdale undertook a ” survey in order to determine what made the community a desirable place to live, what drew people to “stake their future” in the community, and specifically what to do with Rice Field. The Essman survey showed that the residents of Beaverdale expressed three main attributes that attached people to their communities. They were: (1) social offerings, such as entertainment venues and places to meet; (2) openness (how welcoming a place is); and (3) the area’s aesthetics (its physical beauty and green spaces).
The attachment of the populace to a community is important because it is positively linked to local economic growth. Planner and writer Edward T. McMahon states that when “it comes to 21st century economic development, a key concept is community differentiation. If you can’t differentiate your community from any other, you have no competitive advantage.” “Education, technology, connectivity and distinctiveness have all become more important.” On the matter of distinctiveness, McMahon quotes Joseph Cartright, an authority on economic development: “the unique characteristics of place may be the only truly source of competitive advantage for communities.” Having a distinctive identity will help communities create a quality of life that is attractive for business retention and future residents and private investment. Community economic development efforts should help to create and preserve each community’s sense of uniqueness, attractiveness, history, and cultural and social diversity, and include public gathering places and
“The best places to live, work and visit are those places that are willing to uphold their standards in the face of pressure to allow the lowest common denominator development” and “Too many communities delude themselves into thinking that it doesn’t really matter whether a project is good or bad . . . so long as it produces jobs and tax collection opportunities.” All Development is not Created Equal,Edward T. McMahon (1998).
“Quality urban development . . . wants no part of an unstable, unplanned, uncontrolled environment as they know this is not a place to make a long-term investment.” Planning America’s Communities: Paradise Found? Paradise Lost? Herbert Smith(1991)
In a study published in 2006 on the effect of zoning on economic development in rural areas, the authors concluded that planning and zoning facilitated economic development rather than impeded it. The authors summarized the benefits of zoning to include: “(1) business and citizen preference for land use predictability; (2) assurance for business prospects and residents that their investment will be protected; (3) the ability to guide future development
and prevent haphazard (e.g., patchwork), harmful, or unwanted development; and (4) the minimization of potential conflict between industry and residents.”
Des moines comprehensive plan, Rice Field and modern zoning PHILOSOPHY PROTECTING RIGHTS OF RESIDENTS IN A NEIGHBORHOOD WITH AN ESTABLISHED AND VALUABLE CHARACTER:
RICE FIELD – A NEIGHBORHOOD COMMON integral to the character of Beaverdale:
Rice Field itself is a vital neighborhood common, with a value far greater than the purchase price of the lot. Des Moines’ comprehensive plan attempted to reflect the community’s desire to protect the extraordinary value of Rice Field to the neighborhood, by identifying it, and the residential property surrounding it as a sort of “super” protected zone.
NEIGHBORHOOD CHARACTER:
On page 40 of the Des Moines comprehensive plan, there is this map of residential protection corridors. The area of this development lies in the protected corridor south of Douglas between the northern and southern commercial areas.
On page 22 of the Des Moines comprehensive plan, Beaverdale is cited as an example of one of Des Moines' highly imageable and memorable neighborhoods due to strong organization an continuity among its elements.
Page 66 of the Des Moines Comprehensive Plan addresses the “concern about the negative impacts of … building multi family housing not in character with the existing homes. Incompatible developments have an impact both on the economic value of neighborhoods and quality of life.” On page 66 the policy protecting single family housing stock is explicitly stated: “ a low density land use designation and a singe family zoning classification is appropriate where under 25% of the housing stock has been converted to duplex or multi family development. It is said on page iii: where fewer than 40% of the units are two family and fewer than 10% is multi family, additional multi family housing should not be allowed.”
The 2000 City of Des Moines statistical profiles show that Beaverdale
78% owner occupied and 22 % renters (which renting is a mixture of single family houses, duplexes, and multi family housing) [3,195 total housing units 2,481 owner occupied 714 renters]. These statistics require single family development under the comprehensive plan.
The particular stretch or Beaver Avenue constituting a protected residential corridor is characterized by single-family homes with large setbacks and mature trees. In the terminology of the Des Moines comprehensive plan, it is a highly imageable path, a prominent view area, and it is an entrance into the Beaverdale neighborhood. Such paths we are told on page 38 of the Des Moines comprehensive plan “contribute to Des Moines sense of place. Protecting and enhancing these special paths or corridors is essential to creating a positive image for Des Moines. Failure to protect these paths will allow incompatible changes to the corridor… [and] have a negative impact on the design integrity of the path.” The corridor and Rice Field itself is welcoming to visitors to the community.
CURRENT PUD ZONING – A TRAVESTY OF URBAN PLANNING:
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 nut shell, our arguments were that this portion of Beaver Avenue is designated a residential protective corridor by the comprehensive plan, [Page 40 Des Moines 2020 Community Character Plan] and that 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 being that apartment and commercial infill adjacent to large single family homes, built in the 1920’s, with large set backs, 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 a residential corridor. The benefit a residential corridor over a commercial corridor is that it introduces the residential nature of the community, slows traffic, and is pedestrian friendly.
We argued that from the prospective of Beaverdale as a whole, the current PUD violates every zoning principal articulated in the comprehensive plan, designed to protect single family residential neighborhoods. We prevailed on this argument before Planning and Zoning Board.
After losing before the Planning and Zoning Board, the previous developer changed its argument when the issue came before the City Council. The developer, through its attorney, argued that its development was a community by itself -- a village within a village -- and contained important features of the comprehensive plan for residential neighborhoods: it had an R-1 appearance in some of the housing in addition to row houses along on Beaver Avenue, it had mixed use to serve the little community as well as welcome the greater community to make use of the site through retail shopping; and it had an area designated as a park-like community gathering area. The developer’s revised argument met with approval of this Council. Although, the argument in our opinion bypassed consideration of Beaverdale as a whole, we decided not to seek certiorari in the District Court due to the debatable nature of the issue. Debatable or not, the PUD was a travesty of urban planning.
However, if we take the prior Council and the developer at their words, the current PUD was a product of intense study, debate and cooperation of the brightest minds in the architecture community, the neighborhood organization, the business coalition, the Des Moines, Schools, and the City Planners. The sole justification for its appropriateness in the Beaverdale neighborhood is that it demonstrates the principals of the Des Moines Comprehensive plan in microcosm.
CURRENT PROPOSAL IS A GREATER INFRINGEMENT THAN PRIOR PROPOSAL.
CLOSED TO COMMUNITY.
The current proposal for amending the current PUD completely abandons the microcosm example of an ideal community, for single use and no right or privilege to public access.
A single use, multi residential block building, with the back to the community, trees on the inside of the sidewalk blocking the pedestrians from the site, instead of separating pedestrians from traffic as is generally done in urban planning, implements no principal of the comprehensive plan relating to a residential neighborhood predominantly R-1 in nature. The site goes from open to the public as designated park land, to open to the public through retail and dedicated park space under the existing PUD, to closed to the community under the current proposal. It has al of the faults of the original PUD plus more.
IN APPROPRIATE HOUSING FOR ELDERLY.
This type of housing is not needed. Only 5% of elderly leaver their homes. The overwhelming numbers within this 5% are people with chronic health problems, physical or psychological. These seniors needing to leave their homes, are in need of what the gerontology field terms “a residential facility with a continuum of care”. The part of the elderly community needs to be able to move seamlessly from independent apartments to assisted living to intermediate nursing care. One of the worst things to happen to a dementia patient is to move the patient to a new facility. Often a degradation of health immediately ensues, even an untimely death. One of the major problems in the senior community are seniors waiting too long to make a change. The average age of a resident entering an assisted living center is 90 years of age. The fact that the general population of assisted living facilities are in need of more care than the facility can render, is revealing a huge problem of dependent adult neglect. From independent apartments, assisted living to intermediate nursing care. The Minnesota senior cooperative portrayed as an example of a successful development for seniors by Ewing, is now converting to a continuum of care, because that is what seniors who leave their homes need.
This project is purportedly aimed at 55 year olds to 65 year olds. Notwithstanding the need for early planning, 55 year-olds and other healthy seniors are not leaving their homes, in important numbers. And, the fact is, that it is elderly in their late 70’s and early 80’s which are attracted to these so called senior apartments, which have no services whatsoever for their residents.
AFFORDABLE HOUSING:
This housing has been touted as affordable senior living. According to the developer at his public meetings, the least expensive apartment will be $90,000.00 up front, with an $1,100.00 monthly fee. This is very odd interpretation of affordable. One must consider whether risking $90,000.00 a cooperative is a prudent way for the elderly to conserve their resources, and prepare themselves to have finances ready if their health takes a turn for the worse.
LACK OF NEED.
We have a plethora of empty senior housing in Beaverdale These quote “senior housing” unquote units are going vacant or taking on young families because they cannot attract seniors. These developments do not have the amenities for children, and they will only add to the juvenile problems we experienced by not providing for our children.
INCONGRUITY WITH THE CHARACTER OF THE NEIGHBORHOOD:
On page 22 of the Des Moines comprehensive plan it states: “Neighborhoods can be seen as a composition of their elements and their unique relationship to each other. The repetition of these form elements create patterns, and therefore begin to read as a fabric, or as a whole district, rather than individual buildings and individual streets.” The common identifying characteristics of the buildings are single-family residential with large setbacks.
The Des Moines comprehensive plan goes on to state that we evaluate the appropriateness of a development proposal by its ability to enhance the neighborhoods unique character. And, it warns us that interventions, over time, which interrupt the elements and break the pattern, result in loss of the integrity, which holds the neighborhood together.
The two business areas separated by three blocks: Adams to Ashby to Ovid to Amick, of desirable single-family dwellings and Rice field. The housing serves to introduce the single-family nature of the residential district to those entering Beaverdale from the north. The housing protects neighborhood integrity by calming traffic and preserving continuity between the residences east and west of Beaver Avenue. The apartment building at the corner of Adams and Beaver abuts the commercial node, it is divided from the R-1 60 zone by existing on a separate block. It provides a good transition between the commercial and residential land uses. It softens the convergence between the village and the residential area. It protects the residential corridor. With Holy Trinity church and school, the immediate area at Rice field is highly pedestrian oriented.
According of the Des Moines comprehensive plan, Infill housing should consider current land use, current driveway widths, garage type, depth and width of front and back yards, scale of existing residential units, building materials and current architectural styles.
The design integrity in Beaverdale, which creates our highly imageable neighborhood, is single-family homes. The addition of an apartment building with its back to Beaver Avenue, bounded on three sides by single-family residences creates visual chaos. Individual interventions such as this development removes and interrupts Beaverdale’s individual design and building elements, and will result in loss of integrity which holds the neighborhood together as an identifiable district. Beaverdale’s design integrity is at a level worthy of protection.
There is little proof which could be offered which would be more illustrative of the non conformity of the proposed development than the recommendation of your Plan and Zone staff for screening fencing abutting the single family residences,
Page 40 of the Des Moines comprehensive plan, it states: “If strong residential protection policies are not adopted, uncertainty about future uses encourages speculative purchase and disinvestments.” We are warned that: “Some developers anticipate commercial rezoning along a residential corridor. As soon as one property on a corner develops commercially, it is assumed the commercial zoning will spread down the block. Rental property is often allowed to decline in anticipation of rezoning to commercial adding a look of depression to the corridor.”
The positioning of the proposed development on Rice field eliminates the effect of the apartment building as a boundary of the commercial Node. It penetrates the single-family residential corridor in much the same way as piecemeal commercial rezoning of lots within residential corridors did in the past. The homeowners are placed in the same predicament as past homeowners. Uncertainty as to how the corridor will develop will lead to speculative investment and decay
The Des Moines Comprehensive Plan requires that new development should match the existing building scale. It is difficult to imagine the scale of a development of this magnitude by looking at plats and drawings. You probably cannot be acutely aware of the scale without waiting to stand in the middle of it. But, going to various developments in the City can give you a feel and the feel of this development is not the feel of Beaverdale.
These proposed apartments would create a new dominant scale, completely different from the surrounding homes on three sides. The new proposed development is NOT to the scale of Beaverdale. Beaverdale should not be put in a position to have to constantly try to compensate for a development built on a scale that is just not a good fit for Beaverdale.
The statutory requirement of comprehensive planning requires you to focus on the character of the whole corridor. Rezoning for this single landowner in this residential corridor is spot zoning. The Term “Spot Zoning” is a provocative phrase. However, every Appellate case which has considered whether PUD is spot zoning, has declared that it is. The Appellate courts go no to say, that while spot zoning is disfavored, the pivotal question is whether spot zoning violates the comprehensive plan. To those who think that the Comprehensive Plan has no teeth, consider the latest case from the Iowa Supreme Court: MOLO OIL COMPANY v. THE CITY OF DUBUQUE, 692 N.W.2d 686 Iowa 2005). The Iowa Supreme Court stated: It is well-settled law that zoning decisions are "an exercise of the police powers delegated by the State to municipalities. Citations omitted. Iowa Code section 414.3 provides zoning regulations "shall be made in accordance with a comprehensive plan and designed ... to encourage efficient urban development patterns ... [and] to promote health and the general welfare." Also provides zoning regulations shall be made with reasonable consideration, among other things, as to the character of the area of the district and the peculiar suitability of such area for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city. “A zoning ordinance is valid if it has any real, substantial relation to the public health, comfort, safety, and welfare, including the maintenance of property values.'" Citations omitted.
For those who believe that once property comes into private hands, the owner aught to be given reasonable latitude to develop his property, and that reasonableness consists of a balance of the developer’s interests with those of the community, consider our Supreme Court’s most recent statement upon this belief: Again, quoting from Molo Oil: “The landowners argue we must balance the possible public good against the harm to the landowners to determine whether the zoning was unreasonable as applied to the landowners…We appeared to use this test in Uelner Precision Tools and Dies v. City of Dubuque, citation omitted, to overturn a zoning ordinance down zoning an industrial district to a residential district. We do not believe the validity of a zoning statute depends on the balancing test used in Uelner Precision Tools & Dies, Inc. 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. To the extent the balancing test used in Uelner Precision Tools & Dies, Inc. is inconsistent, it is overruled. Zoning is an exercise of police powers in the interest of the pubic peace, order, morals, health, safety, comfort, convenience and general welfare. Granger v. City of Des Moines, 44 N.W.2d 399 (1950).
Other cases by the Iowa appellate courts have provided guidance on the objects to be balanced in determining the general welfare:
1. Zoning is a restraint on the use of property for the protection of the General Welfare. Brackett v. City of Des Moines, 67 N.W. 2d 542 (Iowa 1954)
2. By their very nature, zoning ordinances act as a restraint on the free use of property, but they constitute a valid exercise of police power in order to promote the general welfare of the community. Id. Greenwalt v. City of Davenport 345 N.W. 2d 537 (Iowa 1984).
3. In determining the validity of zoning restrictions, the prime consideration must be the General purpose and relationships of the ordinance, not the hardship of the individual land owner. Id.
4. Zoning Ordinances should promote the health and the general welfare to provide adequate light, air and undue concentration of population.
COOPERATIVE HOUSING, SECURE INVESTMENT OR FLEECING OF THE ELDERLY?
Salesman on train: How far you going, friend?
Harold Hill: Wherever the people are as green as the money…friend.
--Meredith Wilson, The Music Man
So, Ewing Development has come courting sweeping eighty-year olds off their feet by introducing what they imply is the newest fashion in modern living -- Cooperatives! Age segregated cooperatives may have originated in Minnesota, but residential cooperatives have been around in the United States since 1876, when the first one appeared in New York City. Cooperative apartments may be unusual for Des Moines, but they are not unheard of. We have personal experience in Des Moines, and a very long history from other states from which to evaluate the proposal for Beaverdale.
On the bright side, during the first half of the Twentieth Century cooperatives proved to be an example of successful residential urban planning for persons of moderate means. They were designed with consumer interests in mind, and they were models of economy and good living.
Cooperatives began to experience problems as developer’s profits soared, sometimes as much as 100%, and excessive mortgaging increased interest rates and closing costs (points). Serious difficulties with the cooperative arrangement became apparent during the Great Depression; the collapse of a NYC building bubble in the late 1980’s and early 1990’s; and our more recent housing collapse. To appreciate the pitfalls of cooperatives one must understand some of the legal technicalities.
Cooperative apartments are a form of ownership in which a corporation owns the building and land with a single mortgage. Residents own shares in the corporation. The shares are usually tied to a specific dwelling unit. Almost uniformly, the corporation carries a mortgage for most of the appraised value of the real estate. The individual residential purchaser pays an up-front charge (the Beaverdale proposal is for a charge between $90,000 and $146,000). The resident also pays a monthly fee (the Beaverdale proposal begins at $1,100 per month for its cheapest offering). Depending upon the extent of greed present, most to all of the front money goes to the developer, and monthly payments go to pay the mortgage, taxes and maintenance. The developer takes his money and runs. The cooperative is left for the resident owners to operate. They often hire a manager to collect fees, pay charges, and manage maintenance.
Serious problems arise when too many shareholder monthly fees go unpaid. Age has its unique way of causing attrition of residents. Suppose a resident owner requires intermediate nursing care. One would need an awful lot of money to pay for a nursing facility and a cooperative apartment at the same time. How difficult is it to find a buyer for a senior apartment? Just ask Gail Nerison, who was still unable to sell her mother’s unit at The Lodge of Ashworth, five years after her mother’s death. (DM Register August 3rd 2013, Readers Watchdog: Buyer Beware…)
For whatever reason, if insufficient funds are collected, mortgage payments and taxes may go unpaid. The mortgage company may then foreclose against the cooperative, and the owner residents lose their equity, their ownership, and their residence. Even in NYC, where apartments are subject to rent controls, cooperatives have sometimes been restructured as rentals after foreclosure. The point to bear in mind is that each resident’s individual financial security is dependent upon the percentage of occupancy and the performance of the obligations of his /her fellow shareholders. The plethora of signs indicating vacant senior dwelling units along Beaver Avenue should give the target demographic pause to carefully consider the merits of the latest in modern living purveyed by Ewing Development.
If the default rate in the payment of monthly fees is not serious enough to cause a shortage of funds for mortgage or tax payments, consider the plight of the hapless resident owner in default. As indicated, the resident owner does not own real estate, he/she owns stock in a corporation. This is an important distinction.
Recourse against a security pledged to guarantee performance is governed by Article IX of the Uniform Commercial Code (UCC). While the Article IX provides an option for judicial supervision over foreclosing a security interest, it also provides a self-help remedy, almost universally elected by creditors, by which the creditor can give notice to the debtor and, if the debtor fails to cure the unpaid fees, the creditor can go ahead and auction the security. Creditor auctions tend to be uncompetitive. The odds are a shareholder in default will lose most, if not all of the front money.
To give Ewing Development its due, there are two features of its proposal that may ameliorate some of the harsh scenarios I have described. First, according to Ewing spokespersons at the recent meetings in Beaverdale, the cooperative by laws will empower the corporation to veto a sale for a period up to two months, not completely block a sale, as traditionally seen with cooperatives. Accordingly, a shareholder may be able to sell his/her share at a loss, even though the sale depresses the value of all of the units. If you imagine yourself as a surviving resident owner, you should consider the loss other residents can cause to your investment, by selling their shares at a loss. Second, Ewing purports to be selling the units at about half their value. The Developer implies that this makes the investment a sure bet.
But, value is the merger between what a willing buyer will pay and a willing seller will accept. Does anyone really believe that a “fifty-percent-off sale” is a reduction from market value?
An Ewing Development spokesperson misled his audience when addressing the possibility of foreclosure by stating that an insured mortgage would be “restructured.” “Restructure” is the term applied in NYC to converting cooperatives into rentals, after foreclosure. How likely is it that seniors could lose everything in a failed cooperative? Just ask the children and grand-children whose parents or grand-parents were resident owners of Heather Manor.
When I started practicing law in Des Moines, the City was cursed with a real estate investor who purchased houses by way of a mortgage, and sold them on contract. Eventually the real estate investor got behind on his mortgage payments, the mortgage companies foreclosed. The contract purchasers lost everything. The City Council anguished over the advantage taken of vulnerable citizens, trying their best to obtain the American dream of home ownership, and did something about it. The Council enacted regulations on contract purchasers which required the seller to warn the purchaser in writing of the dangers of underlying mortgages, and advise the buyer to seek advice.
Don’t place you elderly citizens at risk, by allowing this inappropriate get rich scheme for the developer to come into Des Moines and take advantage of our citizens.
Marcellus Washburn: …Anything these Iowa people don't have already, they do without.
-- The Music Man
FAILURE OF CITY OF DES MOINES TO FOLLOW ITS ORDINANCE, WHEN INITIAL DEVELOPER FAILED TO BUILD.
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 sections 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 commendations or to initiate such other remedial measures as the council determines to be reasonably necessary
under the circumstances.(O.10,726, 10,843, 10,927, 11,577, 11,833, 12,067, 13,015,
13,081; C91, § 2A-14.01(Q)
THEREFORE, we urge the Council to deny the change in zoning requested. We also request the Council vacate the current PUD under Section 134-708 and return the property to R1060.
Respectfully submitted,
Bruce Lundy Butler
Attorney at Law
2420 Beaver avenue
Des Moines, Iowa 50310
Telephone: 515-274-3035
Email: [email protected]
ATTORNEY FOR SAVE THE GREEN, an unincorporated Association of concerned citizens
My name is Bruce Butler. I am a member of Friends of Rice Field, a group of neighbors working to protect Rice Field from mal-development. If yard signs are any indication, we are 600 strong, only because we ran out of signs. The Essman survey taken in 2004 would indicate that we are in accord with 75% of the neighborhood. I wish to place in the record the petition signed by more than 400 people opposed to this development on Rice Field. I also wish to place into the record the comments from the public concerning preservation of Rice Field.
GOVERNING RULES OF PROCEDURE.
Section 415.5 of the Code of Iowa provides:
414.5 Changes — protest.
The regulations, restrictions, and boundaries may, from time to time, be amended, supplemented, changed, modified, or repealed. Notwithstanding section 414.2, as a part of an ordinance changing land from one zoning district to another zoning district or an ordinance approving a site development plan, a council may impose conditions on a property owner which are in addition to existing regulations if the additional conditions have been agreed to in writing by the property owner before the public hearing required under this section or any adjournment of the hearing. The conditions must be reasonable and imposed to satisfy public needs which are directly caused by the requested change. In case, however, of a written protest against a change or repeal which is filed with the city clerk and signed by the owners of twenty percent or more of the area of the lots included in the proposed change or repeal, or by the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the change or repeal is proposed, the change or repeal shall not become effective except by the favorable vote of at least three-fourths of all the members of the council. The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments.
[C24, 27, 31, 35, 39, §6456; C46, 50, 54, 58, 62, 66, 71, 73, 75, 77, 79, 81, §414.5]
84 Acts, ch 1176, §1; 85 Acts, ch 9, §2; 88 Acts, ch 1246, §8
Referred to in §657.9
Section 134-700 of the Des Moines Municipal Code provides for a 4 5th vote only if the Plan and Zone Commission does not recommend the proposal, or there is an increase in density.
In this regard, the Des Moines Municipal Code conflicts with the State statute, is illegal and should not control the Council’s action.
PHILOSOPHY OF ZONING MISUNDERSTOOD BY PUBLIC AND PUBLIC OFFICIALS:
Through these years of advocacy we have learned a lot about urban planning. We have also learned that the philosophy and rules governing urban planning are often misunderstood by the public and public officials. We have studied the different philosophies of municipalities such as Houston, Texas, which has no zoning ordinance, and manages growth through restrictive covenants. We have become acquainted with the abundance of criticism of land use planning being in the political arena, for as noted by William A. Fischel, Professor of Economics at Dartmouth College:
“Zoning is the product of a political process, and it serves the interests of those who control that process.”
Examples are abundant. There are few, if any, textbooks which can illustrate the validity of this observation, more than the process which led to the current PUD zoning of Rice Field.
Some of the comments made by Council members, in session as well as out of session, indicate that it is useful to review the basic principles of zoning law, before coming to a conclusion about rezoning of Rice Field. We have heard, for example, that notwithstanding the public welfare of open green space in an urban setting, once Rice Field came into private hands, the landowner should be allowed to develop his property, regardless of current zoning. This sentiment has been echoed in a statement that a private landowner should be able to develop his property as he likes, (presumably so long as it is not physically injurious to the community). We have heard it said that the comprehensive plan has no teeth. And, it is widely said that since Rice Field has been sold, development is a done deal.
Review of zoning history, philosophy and law:
So, I’d like to take a short digression to review the history, philosophy and rules governing your action tonight to address those of you who are concerned over restricting a landowner’s property interests. That is, my summary of zoning principles will have a particular emphasis on the philosophical legitimacy of this body imposing zoning restrictions on the owner of Rice Field.
Zoning has been with us since the dawn of history. Early Roman law addressed a need for protection against encroachments in certain areas and the spatial relationships of certain buildings to other structures. In Colonial America, the settlement of Jamestown separated certain activities from other activities. English Common Law is replete with cases effectively implementing zoning based on nuisance law.
Nevertheless, acceptability of land use controls in the United States was not immediate or universal. During the 19th Century, there was the tendency of the American courts to go to great lengths to assure that individual property rights were protected from arbitrary control of government. Public control of private land was not only uncommon; it was contrary to the independent, agrarian and enterprising values of the society which founded our country.
Early municipal planning was associated with relief from poor sanitary conditions associated with large cities and dense populations, brought upon by the industrial revolution. Inadequate waste disposal, lack of sunlight, and visual grimness were all associated with urban development. As the idea of public sewers came about, the physical locations of structures became important, as did development patterns. Building height and location became important as they related on a human scale. Also, great city fires made building codes and geographic compartments for containing fires necessary.
A response to the “ugliness” of urban life resulted in various urban reform movements that eventually converged into the City Beautiful movement, an outgrowth of the 1893 Columbian Exposition in Chicago. However, although City Beautiful was a definite forerunner of municipal planning, its efforts focused on the public space, not private property. Late in the nineteenth century, various municipal efforts to control private property, and the resulting litigation, began to lay the groundwork for modern municipal zoning of private property. Slowly, then with increasing traction, zoning was embraced in various parts of the country.
The seminal case holding that zoning was a legitimate exercise of the police powers of municipal governments was set down in a land mark ruling by The United States Supreme Court in THE VILLAGE of EUCLID, OHIO v. AMBLER REALTY CO., 272 U.S. 365 (1926). The Court said:
“building zone laws are of modern origin. They began in this country in the [1920’s]. Until [that time] urban life was comparatively simple; but with the great increase and concentration of population, problems have developed, and constantly are developing, which require, and will continue to require, additional restrictions in respect of the use and occupation of private lands in urban communities. Regulations, the wisdom, necessity and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained – [which] a century ago… probably would have been rejected as arbitrary and oppressive. Such regulations are sustained, under the complex conditions of our day, for reasons analogous to those which justify traffic regulations, which, before the advent of automobiles and rapid transit street railways, would have been condemned as fatally arbitrary and unreasonable. …their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise.
In short, the justification for municipal zoning is the delegation of “police powers” by State governments to municipalities.
The most often quoted definition of the police power is that of Judge Cooley, in his work: Constitutional Limitations, 7th ed., p. 245. and is cited ad infinitum by State and Federal courts. Police Powers as described by Judge Cooley, is “the power to establish rules to prevent the conflict of rights.”
20th century shift to protection of residential communities:
The principal use of zoning laws during the 20th Century was to protect residential housing. This experience began to define what zoning was. The rationale for zoning typically offered in the economics literature is that some activities cause spillover effects on their neighbors and that the best way to deal with these spillovers is to employ police-power regulations to separate uses.
Modern PHILOSOPHICAL justification for zoning laws, beyond public sanitation, pollution and fire PROTECTION – CLASH OF RIGHTS.
Modern economic theories indicate that zoning is only partially about protecting individual property owners against the effects of "spillovers" or negative externalities that adversely affect the market values of individual properties. These economists argue that zoning protects what they term as “a homeowner's consumer surplus in a home and in the surrounding neighborhood.” Another term for this protected interest is “Public Commons,” or “Neighborhood Commons”
Neighborhoods are not just made up of individual parcels, but include collective resources comprising neighborhood commons, and the property rights of an urban neighborhood dweller typically consist both in specified rights in an individual dwelling and inchoate rights in a neighborhood commons. “Commons,” as the term is employed, consists of open-access of communally-owned property, such as streets, sidewalks, parks, playgrounds, and libraries. It also includes restricted-access but communally-owned property, such as public schools, public recreational facilities, and public transportation facilities. It also includes privately-owned property to which the public generally is granted access, such as restaurants, nightspots, theaters, groceries, and retail establishments. It includes: churches, temples, private schools, political organizations, clubs, and fraternal and civic organizations, although essentially private associations, are characterized by some substantial degree of open access to members of the community. Finally, the neighborhood commons include other intangible qualities such as neighborhood ambiance, aesthetics, the physical environment (including air quality and noise), and relative degrees of anonymity or neighborliness.
These features together make up the "character" of a neighborhood. They are what give the neighborhood its distinctive flavor. A purchaser of residential property in an urban neighborhood buys not only a particular parcel of real estate, but also a share in the neighborhood commons. Typically, differences in the neighborhood commons may be as crucial to a decision to purchase as differences in individual parcels.
Piecemeal devaluation of a community character is extremely difficult to protect against. Zoning is aimed at preventing, or at least limiting, precisely the kind of changes in the use of property which we are concerned with at Rice Field. The proposal is disruptive of a neighborhood's character because it is inconsistent with current uses of the neighborhood commons. These include changes in density, as well as shifts from single residential to apartment buildings.
If Rice field is allowed to be developed according to the proposed plan, homeowners in Beaverdale are forced to bear the full costs of lost consumer surplus. The neighborhood will become less stable. Homeowners, fearing potential risks, would have reduced incentives to invest in their homes and neighborhoods and greater incentives to move to areas where they perceive the risks of unwelcome development to be lower.
Zoning thus can be seen as a peculiar kind of property rule—one in which developers can in limited ways "buy" the rights to develop contrary to the zoning entitlement, but only by compensating the community for its loss.
Again, in answer to the traditional notion that a property owner should be free to use his property as he chooses: Zoning gives current neighborhood residents a kind of "right of prior appropriation" over the neighborhood commons. This right trumps the right of other property owners to use their land in ways that interfere with, or are inconsistent with, current uses of the neighborhood commons. Developments may proceed as long as they are either consistent with current uses of the neighborhood commons, or in ways the neighborhood has agreed in advance (through the political process) to allow. This protects the expectations of neighborhood residents.
The core functions of zoning can best be served if zoning is decentralized and participatory. A decentralized and participatory neighborhood zoning process, which gives neighborhood residents a direct voice in zoning decisions affecting their neighborhood, is critical for several reasons. First, neighborhood residents, not planners or elected officials, are in the best position to evaluate their own consumer surplus in their homes and in their neighborhoods. To the extent zoning is designed to protect these values, the most effective way to elicit that information is through residents' participation in neighborhood zoning decisions. Second, decentralized and participatory zoning is essential to shift zoning decision-making out of the "interest group" paradigm—in which neighborhood residents are just one of a number of competing interest groups, and a weak and disorganized one at that—into something more akin to the "median voter" model in which decision-making more clearly reflects neighborhood preferences. Third, citizen participation is essential to combat bribery and the corrupting influence of political contributions by developer interests.
THE COMMUNITY’S PREFERENCES:
DESIGNATED AS A PARK – RESERVED FOR A SCHOOL:
At the beginning of the process to consider the future of Rice Field, the Des Moines School District designated the land as a park, until it might be needed as a school. The demographic projections of the need for a neighborhood school projected this decade as pivotal. And anyone with an eye on Monroe School enrollment, knows that it is overflowing capacity.
The City of Des Moines and the Des Moines schools entered into a 28E agreement whereby the City would have the use of Rice Field as a park, and the Schools would have the use of Prospect park as a parking lot. Rice Field is no longer a park, but the schools still use prospect park as a parking lot. Who is looking out for the City’s financial interests, and conservation of park land?
COMMUNITY’S INPUT:
The community of Beaverdale undertook a ” survey in order to determine what made the community a desirable place to live, what drew people to “stake their future” in the community, and specifically what to do with Rice Field. The Essman survey showed that the residents of Beaverdale expressed three main attributes that attached people to their communities. They were: (1) social offerings, such as entertainment venues and places to meet; (2) openness (how welcoming a place is); and (3) the area’s aesthetics (its physical beauty and green spaces).
The attachment of the populace to a community is important because it is positively linked to local economic growth. Planner and writer Edward T. McMahon states that when “it comes to 21st century economic development, a key concept is community differentiation. If you can’t differentiate your community from any other, you have no competitive advantage.” “Education, technology, connectivity and distinctiveness have all become more important.” On the matter of distinctiveness, McMahon quotes Joseph Cartright, an authority on economic development: “the unique characteristics of place may be the only truly source of competitive advantage for communities.” Having a distinctive identity will help communities create a quality of life that is attractive for business retention and future residents and private investment. Community economic development efforts should help to create and preserve each community’s sense of uniqueness, attractiveness, history, and cultural and social diversity, and include public gathering places and
“The best places to live, work and visit are those places that are willing to uphold their standards in the face of pressure to allow the lowest common denominator development” and “Too many communities delude themselves into thinking that it doesn’t really matter whether a project is good or bad . . . so long as it produces jobs and tax collection opportunities.” All Development is not Created Equal,Edward T. McMahon (1998).
“Quality urban development . . . wants no part of an unstable, unplanned, uncontrolled environment as they know this is not a place to make a long-term investment.” Planning America’s Communities: Paradise Found? Paradise Lost? Herbert Smith(1991)
In a study published in 2006 on the effect of zoning on economic development in rural areas, the authors concluded that planning and zoning facilitated economic development rather than impeded it. The authors summarized the benefits of zoning to include: “(1) business and citizen preference for land use predictability; (2) assurance for business prospects and residents that their investment will be protected; (3) the ability to guide future development
and prevent haphazard (e.g., patchwork), harmful, or unwanted development; and (4) the minimization of potential conflict between industry and residents.”
Des moines comprehensive plan, Rice Field and modern zoning PHILOSOPHY PROTECTING RIGHTS OF RESIDENTS IN A NEIGHBORHOOD WITH AN ESTABLISHED AND VALUABLE CHARACTER:
RICE FIELD – A NEIGHBORHOOD COMMON integral to the character of Beaverdale:
Rice Field itself is a vital neighborhood common, with a value far greater than the purchase price of the lot. Des Moines’ comprehensive plan attempted to reflect the community’s desire to protect the extraordinary value of Rice Field to the neighborhood, by identifying it, and the residential property surrounding it as a sort of “super” protected zone.
NEIGHBORHOOD CHARACTER:
On page 40 of the Des Moines comprehensive plan, there is this map of residential protection corridors. The area of this development lies in the protected corridor south of Douglas between the northern and southern commercial areas.
On page 22 of the Des Moines comprehensive plan, Beaverdale is cited as an example of one of Des Moines' highly imageable and memorable neighborhoods due to strong organization an continuity among its elements.
Page 66 of the Des Moines Comprehensive Plan addresses the “concern about the negative impacts of … building multi family housing not in character with the existing homes. Incompatible developments have an impact both on the economic value of neighborhoods and quality of life.” On page 66 the policy protecting single family housing stock is explicitly stated: “ a low density land use designation and a singe family zoning classification is appropriate where under 25% of the housing stock has been converted to duplex or multi family development. It is said on page iii: where fewer than 40% of the units are two family and fewer than 10% is multi family, additional multi family housing should not be allowed.”
The 2000 City of Des Moines statistical profiles show that Beaverdale
78% owner occupied and 22 % renters (which renting is a mixture of single family houses, duplexes, and multi family housing) [3,195 total housing units 2,481 owner occupied 714 renters]. These statistics require single family development under the comprehensive plan.
The particular stretch or Beaver Avenue constituting a protected residential corridor is characterized by single-family homes with large setbacks and mature trees. In the terminology of the Des Moines comprehensive plan, it is a highly imageable path, a prominent view area, and it is an entrance into the Beaverdale neighborhood. Such paths we are told on page 38 of the Des Moines comprehensive plan “contribute to Des Moines sense of place. Protecting and enhancing these special paths or corridors is essential to creating a positive image for Des Moines. Failure to protect these paths will allow incompatible changes to the corridor… [and] have a negative impact on the design integrity of the path.” The corridor and Rice Field itself is welcoming to visitors to the community.
CURRENT PUD ZONING – A TRAVESTY OF URBAN PLANNING:
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 nut shell, our arguments were that this portion of Beaver Avenue is designated a residential protective corridor by the comprehensive plan, [Page 40 Des Moines 2020 Community Character Plan] and that 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 being that apartment and commercial infill adjacent to large single family homes, built in the 1920’s, with large set backs, 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 a residential corridor. The benefit a residential corridor over a commercial corridor is that it introduces the residential nature of the community, slows traffic, and is pedestrian friendly.
We argued that from the prospective of Beaverdale as a whole, the current PUD violates every zoning principal articulated in the comprehensive plan, designed to protect single family residential neighborhoods. We prevailed on this argument before Planning and Zoning Board.
After losing before the Planning and Zoning Board, the previous developer changed its argument when the issue came before the City Council. The developer, through its attorney, argued that its development was a community by itself -- a village within a village -- and contained important features of the comprehensive plan for residential neighborhoods: it had an R-1 appearance in some of the housing in addition to row houses along on Beaver Avenue, it had mixed use to serve the little community as well as welcome the greater community to make use of the site through retail shopping; and it had an area designated as a park-like community gathering area. The developer’s revised argument met with approval of this Council. Although, the argument in our opinion bypassed consideration of Beaverdale as a whole, we decided not to seek certiorari in the District Court due to the debatable nature of the issue. Debatable or not, the PUD was a travesty of urban planning.
However, if we take the prior Council and the developer at their words, the current PUD was a product of intense study, debate and cooperation of the brightest minds in the architecture community, the neighborhood organization, the business coalition, the Des Moines, Schools, and the City Planners. The sole justification for its appropriateness in the Beaverdale neighborhood is that it demonstrates the principals of the Des Moines Comprehensive plan in microcosm.
CURRENT PROPOSAL IS A GREATER INFRINGEMENT THAN PRIOR PROPOSAL.
CLOSED TO COMMUNITY.
The current proposal for amending the current PUD completely abandons the microcosm example of an ideal community, for single use and no right or privilege to public access.
A single use, multi residential block building, with the back to the community, trees on the inside of the sidewalk blocking the pedestrians from the site, instead of separating pedestrians from traffic as is generally done in urban planning, implements no principal of the comprehensive plan relating to a residential neighborhood predominantly R-1 in nature. The site goes from open to the public as designated park land, to open to the public through retail and dedicated park space under the existing PUD, to closed to the community under the current proposal. It has al of the faults of the original PUD plus more.
IN APPROPRIATE HOUSING FOR ELDERLY.
This type of housing is not needed. Only 5% of elderly leaver their homes. The overwhelming numbers within this 5% are people with chronic health problems, physical or psychological. These seniors needing to leave their homes, are in need of what the gerontology field terms “a residential facility with a continuum of care”. The part of the elderly community needs to be able to move seamlessly from independent apartments to assisted living to intermediate nursing care. One of the worst things to happen to a dementia patient is to move the patient to a new facility. Often a degradation of health immediately ensues, even an untimely death. One of the major problems in the senior community are seniors waiting too long to make a change. The average age of a resident entering an assisted living center is 90 years of age. The fact that the general population of assisted living facilities are in need of more care than the facility can render, is revealing a huge problem of dependent adult neglect. From independent apartments, assisted living to intermediate nursing care. The Minnesota senior cooperative portrayed as an example of a successful development for seniors by Ewing, is now converting to a continuum of care, because that is what seniors who leave their homes need.
This project is purportedly aimed at 55 year olds to 65 year olds. Notwithstanding the need for early planning, 55 year-olds and other healthy seniors are not leaving their homes, in important numbers. And, the fact is, that it is elderly in their late 70’s and early 80’s which are attracted to these so called senior apartments, which have no services whatsoever for their residents.
AFFORDABLE HOUSING:
This housing has been touted as affordable senior living. According to the developer at his public meetings, the least expensive apartment will be $90,000.00 up front, with an $1,100.00 monthly fee. This is very odd interpretation of affordable. One must consider whether risking $90,000.00 a cooperative is a prudent way for the elderly to conserve their resources, and prepare themselves to have finances ready if their health takes a turn for the worse.
LACK OF NEED.
We have a plethora of empty senior housing in Beaverdale These quote “senior housing” unquote units are going vacant or taking on young families because they cannot attract seniors. These developments do not have the amenities for children, and they will only add to the juvenile problems we experienced by not providing for our children.
INCONGRUITY WITH THE CHARACTER OF THE NEIGHBORHOOD:
On page 22 of the Des Moines comprehensive plan it states: “Neighborhoods can be seen as a composition of their elements and their unique relationship to each other. The repetition of these form elements create patterns, and therefore begin to read as a fabric, or as a whole district, rather than individual buildings and individual streets.” The common identifying characteristics of the buildings are single-family residential with large setbacks.
The Des Moines comprehensive plan goes on to state that we evaluate the appropriateness of a development proposal by its ability to enhance the neighborhoods unique character. And, it warns us that interventions, over time, which interrupt the elements and break the pattern, result in loss of the integrity, which holds the neighborhood together.
The two business areas separated by three blocks: Adams to Ashby to Ovid to Amick, of desirable single-family dwellings and Rice field. The housing serves to introduce the single-family nature of the residential district to those entering Beaverdale from the north. The housing protects neighborhood integrity by calming traffic and preserving continuity between the residences east and west of Beaver Avenue. The apartment building at the corner of Adams and Beaver abuts the commercial node, it is divided from the R-1 60 zone by existing on a separate block. It provides a good transition between the commercial and residential land uses. It softens the convergence between the village and the residential area. It protects the residential corridor. With Holy Trinity church and school, the immediate area at Rice field is highly pedestrian oriented.
According of the Des Moines comprehensive plan, Infill housing should consider current land use, current driveway widths, garage type, depth and width of front and back yards, scale of existing residential units, building materials and current architectural styles.
The design integrity in Beaverdale, which creates our highly imageable neighborhood, is single-family homes. The addition of an apartment building with its back to Beaver Avenue, bounded on three sides by single-family residences creates visual chaos. Individual interventions such as this development removes and interrupts Beaverdale’s individual design and building elements, and will result in loss of integrity which holds the neighborhood together as an identifiable district. Beaverdale’s design integrity is at a level worthy of protection.
There is little proof which could be offered which would be more illustrative of the non conformity of the proposed development than the recommendation of your Plan and Zone staff for screening fencing abutting the single family residences,
Page 40 of the Des Moines comprehensive plan, it states: “If strong residential protection policies are not adopted, uncertainty about future uses encourages speculative purchase and disinvestments.” We are warned that: “Some developers anticipate commercial rezoning along a residential corridor. As soon as one property on a corner develops commercially, it is assumed the commercial zoning will spread down the block. Rental property is often allowed to decline in anticipation of rezoning to commercial adding a look of depression to the corridor.”
The positioning of the proposed development on Rice field eliminates the effect of the apartment building as a boundary of the commercial Node. It penetrates the single-family residential corridor in much the same way as piecemeal commercial rezoning of lots within residential corridors did in the past. The homeowners are placed in the same predicament as past homeowners. Uncertainty as to how the corridor will develop will lead to speculative investment and decay
The Des Moines Comprehensive Plan requires that new development should match the existing building scale. It is difficult to imagine the scale of a development of this magnitude by looking at plats and drawings. You probably cannot be acutely aware of the scale without waiting to stand in the middle of it. But, going to various developments in the City can give you a feel and the feel of this development is not the feel of Beaverdale.
These proposed apartments would create a new dominant scale, completely different from the surrounding homes on three sides. The new proposed development is NOT to the scale of Beaverdale. Beaverdale should not be put in a position to have to constantly try to compensate for a development built on a scale that is just not a good fit for Beaverdale.
The statutory requirement of comprehensive planning requires you to focus on the character of the whole corridor. Rezoning for this single landowner in this residential corridor is spot zoning. The Term “Spot Zoning” is a provocative phrase. However, every Appellate case which has considered whether PUD is spot zoning, has declared that it is. The Appellate courts go no to say, that while spot zoning is disfavored, the pivotal question is whether spot zoning violates the comprehensive plan. To those who think that the Comprehensive Plan has no teeth, consider the latest case from the Iowa Supreme Court: MOLO OIL COMPANY v. THE CITY OF DUBUQUE, 692 N.W.2d 686 Iowa 2005). The Iowa Supreme Court stated: It is well-settled law that zoning decisions are "an exercise of the police powers delegated by the State to municipalities. Citations omitted. Iowa Code section 414.3 provides zoning regulations "shall be made in accordance with a comprehensive plan and designed ... to encourage efficient urban development patterns ... [and] to promote health and the general welfare." Also provides zoning regulations shall be made with reasonable consideration, among other things, as to the character of the area of the district and the peculiar suitability of such area for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city. “A zoning ordinance is valid if it has any real, substantial relation to the public health, comfort, safety, and welfare, including the maintenance of property values.'" Citations omitted.
For those who believe that once property comes into private hands, the owner aught to be given reasonable latitude to develop his property, and that reasonableness consists of a balance of the developer’s interests with those of the community, consider our Supreme Court’s most recent statement upon this belief: Again, quoting from Molo Oil: “The landowners argue we must balance the possible public good against the harm to the landowners to determine whether the zoning was unreasonable as applied to the landowners…We appeared to use this test in Uelner Precision Tools and Dies v. City of Dubuque, citation omitted, to overturn a zoning ordinance down zoning an industrial district to a residential district. We do not believe the validity of a zoning statute depends on the balancing test used in Uelner Precision Tools & Dies, Inc. 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. To the extent the balancing test used in Uelner Precision Tools & Dies, Inc. is inconsistent, it is overruled. Zoning is an exercise of police powers in the interest of the pubic peace, order, morals, health, safety, comfort, convenience and general welfare. Granger v. City of Des Moines, 44 N.W.2d 399 (1950).
Other cases by the Iowa appellate courts have provided guidance on the objects to be balanced in determining the general welfare:
1. Zoning is a restraint on the use of property for the protection of the General Welfare. Brackett v. City of Des Moines, 67 N.W. 2d 542 (Iowa 1954)
2. By their very nature, zoning ordinances act as a restraint on the free use of property, but they constitute a valid exercise of police power in order to promote the general welfare of the community. Id. Greenwalt v. City of Davenport 345 N.W. 2d 537 (Iowa 1984).
3. In determining the validity of zoning restrictions, the prime consideration must be the General purpose and relationships of the ordinance, not the hardship of the individual land owner. Id.
4. Zoning Ordinances should promote the health and the general welfare to provide adequate light, air and undue concentration of population.
COOPERATIVE HOUSING, SECURE INVESTMENT OR FLEECING OF THE ELDERLY?
Salesman on train: How far you going, friend?
Harold Hill: Wherever the people are as green as the money…friend.
--Meredith Wilson, The Music Man
So, Ewing Development has come courting sweeping eighty-year olds off their feet by introducing what they imply is the newest fashion in modern living -- Cooperatives! Age segregated cooperatives may have originated in Minnesota, but residential cooperatives have been around in the United States since 1876, when the first one appeared in New York City. Cooperative apartments may be unusual for Des Moines, but they are not unheard of. We have personal experience in Des Moines, and a very long history from other states from which to evaluate the proposal for Beaverdale.
On the bright side, during the first half of the Twentieth Century cooperatives proved to be an example of successful residential urban planning for persons of moderate means. They were designed with consumer interests in mind, and they were models of economy and good living.
Cooperatives began to experience problems as developer’s profits soared, sometimes as much as 100%, and excessive mortgaging increased interest rates and closing costs (points). Serious difficulties with the cooperative arrangement became apparent during the Great Depression; the collapse of a NYC building bubble in the late 1980’s and early 1990’s; and our more recent housing collapse. To appreciate the pitfalls of cooperatives one must understand some of the legal technicalities.
Cooperative apartments are a form of ownership in which a corporation owns the building and land with a single mortgage. Residents own shares in the corporation. The shares are usually tied to a specific dwelling unit. Almost uniformly, the corporation carries a mortgage for most of the appraised value of the real estate. The individual residential purchaser pays an up-front charge (the Beaverdale proposal is for a charge between $90,000 and $146,000). The resident also pays a monthly fee (the Beaverdale proposal begins at $1,100 per month for its cheapest offering). Depending upon the extent of greed present, most to all of the front money goes to the developer, and monthly payments go to pay the mortgage, taxes and maintenance. The developer takes his money and runs. The cooperative is left for the resident owners to operate. They often hire a manager to collect fees, pay charges, and manage maintenance.
Serious problems arise when too many shareholder monthly fees go unpaid. Age has its unique way of causing attrition of residents. Suppose a resident owner requires intermediate nursing care. One would need an awful lot of money to pay for a nursing facility and a cooperative apartment at the same time. How difficult is it to find a buyer for a senior apartment? Just ask Gail Nerison, who was still unable to sell her mother’s unit at The Lodge of Ashworth, five years after her mother’s death. (DM Register August 3rd 2013, Readers Watchdog: Buyer Beware…)
For whatever reason, if insufficient funds are collected, mortgage payments and taxes may go unpaid. The mortgage company may then foreclose against the cooperative, and the owner residents lose their equity, their ownership, and their residence. Even in NYC, where apartments are subject to rent controls, cooperatives have sometimes been restructured as rentals after foreclosure. The point to bear in mind is that each resident’s individual financial security is dependent upon the percentage of occupancy and the performance of the obligations of his /her fellow shareholders. The plethora of signs indicating vacant senior dwelling units along Beaver Avenue should give the target demographic pause to carefully consider the merits of the latest in modern living purveyed by Ewing Development.
If the default rate in the payment of monthly fees is not serious enough to cause a shortage of funds for mortgage or tax payments, consider the plight of the hapless resident owner in default. As indicated, the resident owner does not own real estate, he/she owns stock in a corporation. This is an important distinction.
Recourse against a security pledged to guarantee performance is governed by Article IX of the Uniform Commercial Code (UCC). While the Article IX provides an option for judicial supervision over foreclosing a security interest, it also provides a self-help remedy, almost universally elected by creditors, by which the creditor can give notice to the debtor and, if the debtor fails to cure the unpaid fees, the creditor can go ahead and auction the security. Creditor auctions tend to be uncompetitive. The odds are a shareholder in default will lose most, if not all of the front money.
To give Ewing Development its due, there are two features of its proposal that may ameliorate some of the harsh scenarios I have described. First, according to Ewing spokespersons at the recent meetings in Beaverdale, the cooperative by laws will empower the corporation to veto a sale for a period up to two months, not completely block a sale, as traditionally seen with cooperatives. Accordingly, a shareholder may be able to sell his/her share at a loss, even though the sale depresses the value of all of the units. If you imagine yourself as a surviving resident owner, you should consider the loss other residents can cause to your investment, by selling their shares at a loss. Second, Ewing purports to be selling the units at about half their value. The Developer implies that this makes the investment a sure bet.
But, value is the merger between what a willing buyer will pay and a willing seller will accept. Does anyone really believe that a “fifty-percent-off sale” is a reduction from market value?
An Ewing Development spokesperson misled his audience when addressing the possibility of foreclosure by stating that an insured mortgage would be “restructured.” “Restructure” is the term applied in NYC to converting cooperatives into rentals, after foreclosure. How likely is it that seniors could lose everything in a failed cooperative? Just ask the children and grand-children whose parents or grand-parents were resident owners of Heather Manor.
When I started practicing law in Des Moines, the City was cursed with a real estate investor who purchased houses by way of a mortgage, and sold them on contract. Eventually the real estate investor got behind on his mortgage payments, the mortgage companies foreclosed. The contract purchasers lost everything. The City Council anguished over the advantage taken of vulnerable citizens, trying their best to obtain the American dream of home ownership, and did something about it. The Council enacted regulations on contract purchasers which required the seller to warn the purchaser in writing of the dangers of underlying mortgages, and advise the buyer to seek advice.
Don’t place you elderly citizens at risk, by allowing this inappropriate get rich scheme for the developer to come into Des Moines and take advantage of our citizens.
Marcellus Washburn: …Anything these Iowa people don't have already, they do without.
-- The Music Man
FAILURE OF CITY OF DES MOINES TO FOLLOW ITS ORDINANCE, WHEN INITIAL DEVELOPER FAILED TO BUILD.
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 sections 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 commendations or to initiate such other remedial measures as the council determines to be reasonably necessary
under the circumstances.(O.10,726, 10,843, 10,927, 11,577, 11,833, 12,067, 13,015,
13,081; C91, § 2A-14.01(Q)
THEREFORE, we urge the Council to deny the change in zoning requested. We also request the Council vacate the current PUD under Section 134-708 and return the property to R1060.
Respectfully submitted,
Bruce Lundy Butler
Attorney at Law
2420 Beaver avenue
Des Moines, Iowa 50310
Telephone: 515-274-3035
Email: [email protected]
ATTORNEY FOR SAVE THE GREEN, an unincorporated Association of concerned citizens