Week of Feb 18 – Bill that fixes Mall Real Estate case; other stuff

Recall that the Iowa Supreme Court issued its decision last July in the Mall Real Estate v. City of Hamburg case that essentially preempted local stand-alone ordinances (not tied to zoning) regulating live nude dancing.  Now the Iowa House of Representatives has introduced a fix for the problems created by that case.  HSB121 clarifies the definition of “material” to specifically exclude live nude dancing (and other things which I am too modest to present here) for purposes of what state law preempts local governments from regulating.  It also clarifies that local governments can enact stand-alone ordinances that will not be preempted by state law.

Also during the week of February 18:

HF268 was introduced as the successor to HF11 (eliminating Smart Planning).

HF307 would move Homeland Security and Emergency Management from the Department of Public Defense into its own department.

HF240 would require the Economic Development Authority to conduct a wireless communications mapping survey to determine areas with weak or nonexistent coverage, and to make recommendations on how to improve and expand coverage.

Bills introduced week of February 11

SF192 would allow the department of transportation or a board of supervisors to straighten, deepen, or otherwise improve any channel, river, stream, or other watercourse if a highway project results in a situation that might contribute to flooding in areas that are not part of the highway right-of-way. They will also be authorized to use eminent domain procedures for this purpose.

SF169 would require the department of natural resources to submit a regulatory fiscal impact on cities report to the governor and legislature by January 1, 2014. The report would describe the “probable quantitative and qualitative impact of each chapter of administrative rules adopted by the environmental protection commission, economic or otherwise, upon affected cities, including a description of the nature and amount of all of the different kinds of costs that would be incurred in complying with each chapter over a 10-year period.”

HF219 makes several modifications to eminent domain authority:

  • property listed on the state register of historic places shall not be removed from the register solely for the purpose of allowing the property to be acquired by condemnation unless the condemnation is undertaken by the department of transportation.
  • property on the state register of historic places may not be condemned unless a joint resolution authorizing the condemnation is approved by a vote of at least two-thirds of each house of the general assembly and signed by the governor. This does not apply to a condemnation by the department of transportation
  • it makes several changes to eminent domain for the development or creation of a lake, raising the bar to exercise eminent domain, and making a provision that if work has not commenced within two years the original owner shall be given the option to buy the property back.
  • requires a city proposing to condemn land outside the city limits – including for an urban renewal project – show that “viable alternatives do not exist within the city and the acquisition of the property is necessary.”
  • HF208 would create an urban-rural dialogue committee to improve collaborative efforts, including by reviewing existing programs administered by state agencies and by studying methods to improve awareness, understanding, and communication between the different types of communities. The committee would be headed by the department of agriculture and land stewardship, and include representatives from the department of natural resources, Iowa state university, and public members representing urban and rural communities.
  • HF184 would prohibit cities from regulating rental occupancy based on the familial status of the renters.  Successor to HSB 9.
  • Bills indroduced week of February 4

    HF122 would create the Iowa Common Interest Ownership Act, which would require a management structure (bylaws, boards, meetings, etc.) for “common interest communities” defined to include cooperatives under Code Chapter 499A and horizontal property regimes under 499C with 8 or more units.

    SF141 would reduce the minimum number of contiguous acres that are required for the establishment of a hunting preserve from 320 acres to 40 acres if the preserve is for game birds only. However, an application for a license to operate such a hunting preserve with an area from 40 – 320 acres must be accompanied by a game bird habitat plan approved by the DNR.  Before the operator’s license can be issued the DNR must be satisfied that the plan is being followed.

    Bills introduced the week of January 28

    HF107 provides that for property tax valuation purposes, residential property includes that portion of a building or structure situated on stories above the ground floor that is used for human habitation and a proportionate share of the land upon which the building or structure is situated, even if the use for human habitation is not the primary use of the building or structure.  Several caveats apply.  The bill allows an assessor to assign more than one classification to a parcel of property satisfying the requirements.

    HF87 pertains to 28E (intergovernmental) agreements between political subdivisions.  It would require that for agreements entered into after July 1, 2013 any disputes arising between parties must be submitted to mediation, then arbitration if necessary (rather than resort to litigation).

    SF98 would repeal the Iowa plumber, mechanical professional, and contractor licensing act. It would also eliminate language in Iowa Code 105.17 that provides that Chapter 105 supersedes and preempts all plumbing, HVAC, refrigeration, hydronic, and contracting licensing provisions of cities and counties.

    SF94 In similar fashion to SF98, this bill would repeal Iowa Code chapter 103, providing for statewide licensure of electricians and electrical contractors. The effect would be to return to the system of administration and regulation of electricians and electrical contractors, and electrical inspections, by cities and counties in place prior to the enactment of Chapter 103.

    SF70 would require each contract for the construction of a public improvement made by a governmental unit to contain a provision requiring that the iron, steel, and manufactured goods used or supplied in the performance of the contract or any subcontract be manufactured in the United States. The bill provides definitions for “construction,” “manufactured in the United States,” and “public improvement.”  The requirement may be waived if the application of the requirement would be contrary to the public interest, that the products necessary for the public improvement are not produced in the United States in sufficient and reasonably available quantities and of a satisfactory quality, or that the requirement would increase the cost of the contract by more than 5 percent.

    HSB75 would make several important revisions to Chapter 384 pertaining to special assessments.  I won’t provide all the details unless and until it moves further along in the process, but some highlights include:

    • It establishes definitions of “community benefit,” “area benefit,” and “individual benefit.”
    • Before initiating work on a public project for which a special assessment will be levied a city must adopt an ordinance setting forth the methodology and procedure to  be used in determining the amount of individual benefit, area benefit, and community benefit that will result from a public improvement and a description of how costs will be allocated to each category.
    • It allows a lot that is subject to a special assessment to be divided into two or more lots for assessment purposes on the request or consent of the property owner.
    • The planning, legal, administrative, engineering, and inspection costs for that portion of the public improvement that is a community benefit and all city employee salary costs associated with the public improvement are presumed to confer a community benefit.
    • if the project includes a street, the city must complete a traffic analysis that forecasts the amount of traffic attributable to each lot in the district vs. traffic generated by other sources, and gives parameters for use in making the forecasts.

    More new Iowa bills…anti-Agenda 21 reaches Iowa

    With HF66 the Iowa House has joined in the anti-Agenda 21 movement making its way across the country.   The bill would prohibit the state of Iowa or any of its political subdivisions from implementing or financially supporting the implementation of Agenda 21 if that implementation would infringe or restrict private property rights without also providing due process of law (the legal mechanisms now in place that accomplish the same objective are called the Takings and Due Process Clauses of the U.S. and Iowa Constitutions).  Subsection two of the bill would not allow cities or counties (or other political subdivisions of the state) to “expend any moneys, or receive moneys for contracting services, or provide or receive financial aid to or from those nongovernmental and intergovernmental organizations as defined in Agenda 21.”  Presumably this is directed toward preventing cities and counties from membership in the International Council for Local Environmental Initiatives (ICLEI) – Local Governments for Sustainability.

    We held a session on the anti-Agenda 21 movement – what it is; where it came from; what is going on in other states – at the APA-Iowa Annual Conference.  We will be putting a short article on the topic in the upcoming APA-Iowa Newsletter and posting it here at the same time.

    SF25 would require the City Development Board to approve a voluntary annexation by 4/5-majority if the county board of supervisors has stated an objection to the annexation.  It also would require any voluntary severance to be approved by a resolution of the county board of supervisors or by the city development board in order to become valid,  and would require the city development board to take into account each adopted city or county comprehensive plan that is or will be applicable to the territory, any applicable zoning ordinance for the territory, the stated reasons for the voluntary severance, and any other factors deemed relevant by the board.

    SF24 would require the holder of an NPDES non-stormwater permit to post a sign at the site.

    SF23 would remove the exemption for farm houses from building codes and county zoning codes.

    Iowa legislature open for business

    The session opened last Monday, and with it began what has come to be an annual attempt to repeal the Smart Planning Act.  HF11 would repeal the 10 smart planning principles, the 13 recommended elements of a comprehensive plan, and all references thereto scattered throughout the code.

    The only other development-related activity worth noting at this point is HSB9, which would allow cities to regulate and restrict the occupancy of residential rental property on the basis of square footage, but also prohibit any regulation related to the occupancy of residential rental property based upon the familial or nonfamilial relationships of occupants.

    SF430 creating the Iowa Public Information Board is sent to Governor

    SF430 was passed by the Senate last week and sent to the Governor yesterday.  It creates the Iowa Public Information Board as a new entity to investigate and enforce Iowa’s Open Meetings and Open Records Laws.  It allows the Board to facilitate a mediation and settlement process when a complainant and government entity cannot agree on whether a violation of either act has occurred, and creates an alternative complaint and enforcement proceeding to be adjudicated by the Board if mediation fails or is refused.  The Board will consist of nine members appointed by the Governor.  The Board will be given the authority to hire one staff person, an attorney, to act as Executive Director.

    Flood mitigation program sent to Governor

    SF 2217 passed both houses, and was sent to the Governor Monday for his signature.  It establishes a flood mitigation program and a flood mitigation board to review proposed flood mitigation projects and authorize funding for approved projects. The bill also establishes two funding sources, a Flood Mitigation Fund and a Sales Tax Increment Fund, to provide funding for flood mitigation projects. The Flood Mitigation Fund will consist of appropriations and other moneys. The Sales Tax increment Fund will receive deposits of increased sales tax revenues from impacted areas, as calculated by the Department of Revenue. The Flood Mitigation Board will determine the funding source and amounts allocated to applicants for approved projects.

    The Legislative Services Agency provides a more detailed description of the bill in its fiscal analysis, found here.

    More bills, little movement

    The first funnel deadline is rapidly approaching, but little action has taken place on any of the bills – other than commercial property taxes – that we have been following.  Some more recently introduced bills of interest include:

    HF 2221 allows an assessor to assign more than one classification to a mixed use parcel of property, and specifically allows a residential classification for a portion of a building used as a residence that is situated on stories above the ground floor and a proportionate share of the land upon which the building or structure is situated, even if the residence is not the primary use of the building or structure, so long as the building or structure consists of three or fewer stories and not less than 75 percent of the structural components of the building or structure are more than 30 years old.

    HF 2179 clarifies the filing requirements for petitions to the city development board involving involuntary city development action by specifying that a petition for incorporation must be filed with the city development board by 5 percent of registered voters of a territory involved in the proposal, and a petition for discontinuance or boundary adjustment must be filed with the city development board by 5 percent of the residents of the city.  Current law allowing petitions for incorporation, discontinuance, or boundary adjustments to also be filed by a city council, a county board of supervisors, or a regional planning authority involved in the proposal remains in place.

    HF 2254 modifies eminent domain. It would prohibit the removal of a property from the state historic register solely for the purposes of allowing it to be condemned, unless it is the Iowa DOT that is proposing to condemn.  Properties on the state historic register could only be condemned after a 2/3 affirmative vote in both the Iowa House and Senate, and approval by the governor.  The bill would also tighten the use of condemnation for lake projects in a number of ways, including requiring more extensive engineering studies, and a requirement that the condemning agency offer the property for sale back to the original owner after 2 years from date of condemnation if construction on the lake has not “progressed substantially.” The bill would also remove the authority of the Environmental Protection Commission and the DNR to use eminent domain to acquire recreational lands.

    HF 2262 – another eminent domain bill, would prohibit the condemnation of property designated as native prairie or as a protected wetland by the DNR, or property established as a forest reservation or a fruit-tree reservation except after a 2/3 affirmative vote in both the Iowa House and Senate, and approval by the governor.

    SF 2152 amends a provision enacted in SF 321 during the 2011 legislative session which authorizes the DNR to adopt standards for the disposal of wastewater from an on-farm processing operation which processes commodities into food such as a dairy, creamery, winery, distillery, cannery, bakery, or meat or poultry processor. Iowa Code 455B.172A currently provides that wastewater originating from the operation may be applied on land if a number of requirements are satisfied. The bill eliminates the requirement that the wastewater be land-applied by a person licensed by the department to dispose of sewage pursuant to Code section 455B.172(5).

    Bill modifying special assessment practices introduced

    We have had several cases recently addressing the proper considerations for calculating special assessments (case summaries can be found here and here and here).  HF 2178 if passed, will change/clarify the calculation of special assessments by cities, counties and sanitary districts in a number of ways.  The major elements of the bill include:

    Prior to the adoption of a preliminary resolution related to a public improvement, a city must adopt an ordinance setting forth the method to be used in determining the amount of “individual benefit,” “district benefit,” and “community benefit” projected to result from the public improvement and a description of the manner in which the cost of the public improvement will be allocated to each category of benefit. 

    The bill requires that 30 days’ notice be published prior to adoption of the preliminary resolution related to a public improvement, and requires the preliminary resolution to contain a detailed description of the method laid out in the ordinance, an estimate of the amount of individual benefit,  district benefit, and community benefit that will be conferred as a result of the public improvement, and the proportion of the total cost of the public improvement which the council proposes to assess against property within the special assessment district.

    The bill adds definitions for “community benefit”, “district benefit”, and “individual benefit”, and adds storm water management intakes, sewers, and facilities and traffic-control devices, fixtures, connections, and facilities to the definition of “street improvement.”

    All of the following public improvements are presumed to confer an individual benefit on a lot within a district:

    a. A public improvement that benefits, serves, or that is intended for use by only one lot, unless such public improvement is replacing an existing public improvement of acceptable or working quality and is required as a result of  work on or repair of another public improvement that does not benefit, serve, or that is not intended for use by only that lot. 

    b. A sidewalk upon a lot that is single-family residential property located along the frontage of the lot not to exceed four feet in width at a standard thickness.

    c. A sidewalk on a lot that is commercial property or multifamily residential property located along the street frontage of the lot not to exceed six feet in width at a standard thickness.

    d. Underground gas, water, heating, sanitary sewer, storm sewer, and electrical connections and accessories located in a public street right-of-way and that serve only the lot.

    All of the following public improvements are presumed to confer a community benefit:

    a. A public improvement or part of a public improvement that is intended for use by or intended to serve lots outside the district.

    b. A sidewalk or recreational trail, or part thereof, that is part of a community-wide public recreational trail system.

    c. The portion of a sidewalk that exceeds the portion of the sidewalk presumed to be an individual benefit

    d. The planning, legal, administrative, and inspection costs, including city employee salary costs, associated with a public improvement that is paid for in part by special assessments.

    The bill amends the definition of “district” to mean “the lots or parts of lots within boundaries of a geographic area established by the council for the purpose of the assessment of all or part of the cost of a public improvement that is intended in whole or in part to provide an individual benefit to such lots or parts of lots.”

    The bill specifies that the total cost of a public improvement, except for certain paving near railroad tracks or improvements to be otherwise paid, may be assessed against all lots within the assessment district to the extent of the individual benefits conferred upon the property, and states that the portion of the total cost of a public improvement that is not assessed to individual lots as the result of individual benefits is attributable to the community benefit and shall be paid by the city. The bill allows a property owner to divide property that is subject to a special assessment into two or more lots for the purpose of separating improved portions of the land from those portions of the land which are unimproved or used for agricultural purposes. 

    The bill designates certain public improvements that are presumed to confer an individual benefit and designates certain public improvements that are presumed to confer a community benefit. Under the bill, the planning, legal, administrative, and inspection costs, including city employee salary costs, associated with a public improvement that is paid for in part by special assessments may not be assessed to individual lots within a district and shall instead be paid by the city as a community benefit. 
    The bill requires each city undertaking a street improvement paid for in whole or in part by a special assessment to complete a vehicle traffic analysis and forecast for the location of the proposed street improvement.  The traffic study must estimate future traffic generated by the lots in the district, and traffic generated by sources other than the lots within the district, based on the type of street being analyzed, completion of the public improvement, full development of the district, and future planned land use within the district. The individual benefit accruing to each lot within the district as the result of the street improvement shall not exceed the percentage of the total benefit from the street improvement that is proportionate to the lot’s forecasted amount of traffic generated