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.

    More new bills introduced

    SF 2047 would amend Iowa Code 303.34(3)  to allow a city with an historic preservation commission to appoint one member to the commission who is not a city resident or property owner if that member meets certain professional qualification standards defined by rule by the department of cultural affairs.

    HSB 536 would amend Iowa Code 68B.22(4), commonly known as the gift law.  The gift law includes a list of exceptions that makes an otherwise impermissible gift permissible.  Currently, one of the exceptions is for food, beverages,  registration, travel, and lodging for a meeting, which is given  in return for participation in a panel or a speaking engagement at the meeting when the expenses relate directly to the day or days on which the donee has participation or presentation responsibilities. The bill would limit the exception to situations where the public official is an actual speaker, not merely a participant.  The bill would also limit the definition of “entertainment” in another exception so that it does not include “admission to a sporting event, concert, theatrical performance, or other similar type of event or performance….”

    SSB 3089 would add a new section to Iowa Code 364.17 that would allow a city to adopt housing code provisions related to sprinkler systems in rental housing. Any such housing code provisions could only apply to newly constructed rental units or substantially renovated rental units. The bill states that “substantially renovated” means renovations that include repairs or improvements to more than 50 percent of the rental unit.

    SSB 3090 would create an amendment to Iowa Code 414.1 allowing a city to regulate and restrict the occupancy of residential rental property on the basis of square footage, but disallowing ordinances that regulate the occupancy  of residential rental property based upon the familial or nonfamilial relationships of occupants, presumably in response to the Ames Rental Property Association v. City of Ames (link to summary here) case decided by the Iowa Supreme Court in 2007.

    SSB 3091 would rename the Iowa Geological and Water Survey as the Sandrock Center for Land and Water Science.  It would make the director a gubernatorial appointee, rather than an appointee of the director of the DNR as it now stands.  the Sandrock Center is to be located in or near to Iowa City, and the University of Iowa shall cooperate with the director of the center to provide office space and staffing assistance.

    New legislative session. Commercial property taxes, TIF will dominate.

    A quick rundown of the bills introduced thus far that have some relevance to planning.  If anyone is aware of others that I may have overlooked please comment below.

    HF 20 – Exempts from lining requirements sanitary landfills that accept only construction and demolition waste.

    HF 507 – Exempts municipal housing projects from “sanitary and building laws, ordinances, and regulations, including any inspections resulting from such laws, ordinances, and regulations, applicable to the locality in which the project is situated”

    HF 613 – restricts the ability of cities and counties to adopt and enforce ordinances which distinguish between persons living in owner-occupied housing and persons living in rental properties, or which distinguishes residential property based on whether it is owner-occupied or leased.

    HF 690 – allows a city or county to exempt vacant commercial property (‘vacant’ for at least the six months prior to the adoption of the exemption) from commercial property taxes if the property regularly attracts unauthorized use, is declining in assessed value, or is determined to be a nuisance.

    HF 2051 – adds fish to list of animals considered by confinement feeding operations regulations, but also allows a person who exclusively confines fish as part of a confinement feeding operation to elect to comply with the state’s general permitting requirements pertaining to water quality instead of the confined feeding operations regulations.

    HSB 500, HF 671, HSB 519 (the Governor’s proposal) all address commercial property tax reform, but in different ways.

    HSB 540 – is a comprehensive revision of urban renewal law and TIF.  It is 80 pages long.  What I see in a quick review includes a prohibition against creating any new urban renewal districts after the enactment of the bill.  Chapter 403 would be replaced by new chapter 402, and new ‘project development plans’ would take the place of urban renewal plans.  All existing districts, except for those with a 20-year expiration, would expire June 30, 2023.  New chapter 402 makes some significant changes to TIF, which I will need to detail in a later post.

    SF 2014 – allows the DOT or a county to alter, change or deepen a watercourse to reduce flooding without falling under DNR statutes and rules.  Allows use of eminent domain for this purpose.

    Some land use bills moving forward.

    In a session slowed by a divided house and senate, the Iowa legislature has recently moved some land use-related bills forward.

    HF 603 (formerly HF 64) passed the house by a vote of 91-6 on March 22 and has been messaged over to the senate.  It makes a number of changes to eminent domain authority.  Among those, it generally raises the bar for most state agencies by requiring a showing of public use/public purpose by clear and convincing evidence (a higher standard than previous).  It also increases the procedural requirements for condemnation for lakes, prohibits condemnation of land on historic register, limits cities use of eminent domain outside city limits, and severely limits condemnations to aquire recreational lands.  There are more details to it.  It is worth reading.

    SF 321 passed the house 91-8.   This bill provides for on-farm processing operations which manufacture products from commodities originating from that farm or another farm such as a dairy, creamery, winery, distillery, or cannery. The bill requires the DNR to adopt standards for the disposal of wastewater or septage from that operation. The standards for disposal of wastewater must provide for disposal by land application, at a wastewater treatment system, through a subsurface absorption system, or through a disposal system that discharges into a public water. The department must also adopt by rule standards for the disposal of septage to a septage lagoon or septage drying bed. 

    SF 489, the bill to implement the recommendations of the Smart Planning Taskforce report from November 2010, has been referred to a senate appropriations subcommittee. 

    HF 300 has been assigned to a subcommittee in the House Ways and Means Committee.  Its companion bill in the senate (SF 395) has also been referred to a subcommittee of the Senate Ways and Means Committee.  HF 300 would keep platted lots assessed as acreage or unimproved property until improved with permanent construction.  Right now a platted lot is assessed as residential 3 years after platting or upon development, whichever comes first.  From a planning perspective, this bill has the potential to promote sprawl.  In other states with assessment rules similar to what is proposed, it has been shown to result in buy and hold by developers because there is no negative tax consequence to speculation on the fringe of urban areas.

    March 1 legislation status check

    The funnel deadline for bills to keep moving (must be passed out of a committee) is Friday, March 4.  SSB 1068, the study bill that carries many of the recommendations of the Smart Planning Taskforce,  passed out of the State Government Committee on February 28 (the link is not to the current as-amended version).  SSB 1068 will now receive a Senate File number.

    SF 321 is the successor bill to SF 269, discussed below, concerning wastewater discharges by on-farm processing operations.  It also passed out of committee yesterday.

    Bills recently introduced, but not yet through committee:

    SF 297 and SF 336 both deal with the notification requirements of meetings of the boards of condominium and homeowners associations.

    HF 430 would protect agricultural operations from nuisance suits under certain circumstances (commonly referred to as a right-to-farm law.  NOTE: the Iowa Supreme Court struck down Iowa’s previous right-to-farm law in a nationally-famous case, Bormann v. Kossuth County, in the 1990s).

    HF 413 would provide a property tax exemption for commercial property in an urban revitalization area that has been vacant for more than six months and meets other criteria.

    HF 388 would no longer allow cities to adopt ordinances providing for the use of a designated amount of the increased local  sales and services tax revenues attributable to retail  establishments in an urban renewal area to fund urban renewal  projects located in that area.  Existing ordinances could be amended or repealed only.

    HF 357 would change the authority of city zoning boards of adjustment to grant variances, by allowing the granting of area variances upon a showing of ‘practical difficulties’ rather than unnecessary hardship.





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