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Home My WebLink AboutA003 - legal opinion on Industrial zoning City of AMES, Iowa 50010 JOHN R. KLAUS Public SatetY City Attorney Bldg (515) 232-6210 R. MICHAEL HAYES SANDRA M. ZENK Assistant City Attorneys September 5, 1979 S EP a 1979 Honorable Lee Fellinger, Mayor and Members of the City Council of the City of Ames, Iowa In Re: Industrial Zoning Dear Mayor Fellinger and Council Members: At its meeting of August 28 the City Council, on the motion of Council Member Hammer, directed that I provide, as soon as possible, advise and comment relative to: (a) proposed new industrial zoning regulations entitled "General Industrial (GI ) and "Planned Industrial" as adopted by the Planning and Zoning Commission and submitted to the City Council under date of July 27, 1979 . (b) An ordinance that would simultaneously: 1. repeal present industrial zoning regulations ( I-1, I-2 and I-3 Dis- tricts) 2. enact the proposed G-I and P-I district regulations 3 . amend the official zoning map so that all land presently under I-1, or I-2 regulations will be put under the proposed G-I regulations; and, all land now shown in the I-3 put district in the proposed P-I district. Since the latter issue is one of procedure, I will provide comments on that question first, reserving comment on the substance of the proposed G-I and P-I regulations until last. 4 - I believe, after research of procedures that have been upheld by courts, that the procedural requirements of chap- ter 414 of the Code of Iowa, and the constitutional concepts of "procedural due process" will be met by an ordinance in a format substantially as shown in Exhibit "A" enacted after a hearing pursuant to published notice in the form shown as Exhibit "B" , both of which are attached hereto. As to the substance of the proposed new industrial zoning district regulations : General Industrial District (G-1 ) 1 . Add the following as a subsection: " (e ) violation. A structure or activity undertaken without a permit issued pursuant to this section; or, in con- flict with the information and represen- tations set out in the site plan or on the use analysis required as a part of the application for such permit, shall constitute a violation of this section for which any and all lawful enforcement means and proceedings may be invoked and instituted. " 2 . Add to the "Standard for Decision" the word "structure" to make it clear that it applies to a "proposed use or structure" , two distinct Concepts under the law of zoning. Planned Industrial District (P-I ) 1 . I recommend that the reference to the City' s Sign Or- dinance" be striken unless you are prepared to run the risk that a court will interpret the scope of plan review on signs to be limited to compliance or noncompliance with the sign ordinance. I do not believe that to be the intent of the Plan Commission for the P-I district. 2 . Add the following as a subsection: " (e) Violation. A structure or activity under- taken without—a permit issued after approval of a plan by the City Council pursuant to the pro- visions of this section; or, in conflict with or not contemplated in the "plan for land use" ap- proved by the City Council, shall constitute a violation of this section for which any and all lawful enforcement means and proceedings may be invoked and instituted. " I am concerned with the proposal for "Industrial Performance Standards" which the Commission seemingly perceives as a separate section to establish a standard or set of standards in addition to the standards set out in the G-I and P-I district regulations, but applicable to both districts . I advise that the Council not enact this proposal, at least as now constituted, for these reasons : (1) Air Pollution. This "performance standard" is redundant-- it is of the same effect as the reference to DEQ and EPA regulations contained in the G-I and P-I sections . (2 ) Odors . The standard proposed in this regard is patently unreasonable. Almost everything has some odor, and some industrial odors can even be pleasant (e.g. the aroma of fresh baked bread from a bread plant) . The concern is for odors that pose public health problems or impact on the usefulness and enjoyability of neighboring pro- perties . Therefore, unless some other reasonably reliable formula or standard on odors can be produced, my advise is that the common law nui- sance standard be employed, on a case by case basis, under the G-I and P-I regulations as writ- ten. (3 ) Vibrations . This also is a factor to be evaluated in terms of nuisance potential under the G-I and P-I regulations as proposed. The standard as proposed may not be appropriate at all . What is "noticeable" may depend on the sensitivity of the seismic detection device employed. On the other hand, if what is meant is that one can feel the earth move beneath one ' s feet, the standard may be altogether too lax. I advise that it would be better to employ the common law nuisance stan- dard on a case by case basis . (4) Fire and Explosive Hazard. This "standard" is again redundant in that it adds nothing but a repeated reference to applicable state and city regulations contained in the G-I and P-I regula- tions as proposed. For the reasons, therefore, that the "performance standards" seem to add little but in some ways run a high risk of being judicially voided as overbroad, vague or unreasonable, I recommend that the proposal not be enacted. The "standards" in the G-I and P-I also represent an experi- ment. However, the "goals" for which the "planning" is required are legitimate concerns of local government and the "common law nuisance" standard is one which Iowa district courts should recognize. My greatest concern is that the decisions made under those standards be properly supported by credible evidence and sound reasoning. I stress this because the decision to approve a plan or issue a permit, even when made by the City Council itself, is arguably "administrative" as distinguished from "legislative" and therefore not necessarily entitled to the presumption of validity which attaches to legislation. In practical terms this means that the Department of Community Development on G-I permits and the City Council in passing P-I plans should conduct itself with an awareness that it may have the burden of justification for its decision to grant or deny a permit or to approve or disapprove a plan if such action is chal- lenged judicially. Respectfully submitted, 05 John R. Klaus City Attorney cc T.V. Sprenkel P. Switz � k 1 P ' ♦ n ORDINANCE NO. AN ORDINANCE TO AMEND THE ZONING REGULA- TIONS OF THE CITY OF AMES, IOWA BY RE- PEALING SECTIONS 38-1023 , 38-1024, AND 38-1025 OF THE MUNICIPAL CODE; ENACTING NEW SECTIONS 38-1023 AND 38-1024; AMEND- ING THE OFFICIAL ZONING MAP, REPEALING ALL ORDINANCE OR PARTS OF ORDINANCE IN CONFLICT HEREWITH: AND ESTABLISHING AN EFFECTIVE DATE. BE IT ENACTED, by the City Council for the City of Ames, Iowa: Section One. The Municipal Code of the City of Ames, Iowa shall be and is hereby amended by repealing sections 38-1023 , 38-1024 and 38-1025 thereof as said sec- tions have existed heretofore and enacting instead new sections 38-1023 and 38-1024, said new sections to read as follows: "Sec. 38-1023 . General Industrial District (G-1 ) xxxx Sec. 38-1023 . Planned Industrial District (P-I ) xxxx Section Two. The Official Zoning Map of the City of Ames, Iowa, adopted by Section 38-1005 of the Municipal Code of the City of Ames, Iowa shall be and is hereby amend- ed so as to change the designation of all lands heretofore designated on said map as I-1 District (Light Industrial ) or I-2 District (Heavy Industrial ) to a designation as GI (General Industrial ) ; and, to change the designation of all lands heretofore designated on said map as I-3 District (Planned Industrial ) to a designation as P-I District (Plan- ned Industrial ) . Section Three. All ordinances or parts of or- dinances in conflict herewith are hereby repealed to the extent of such conflict. Section Four. This ordinance shall be in full force and effect from and after its passage and publication as required by law. Passed this day of 1979. Mary E. Paul, City Clerk Lee Fellinger, Mayor