HomeMy WebLinkAboutA002 - Legal Opinion dated October 2, 1991 to Donald Newbrough CITY OF AMES , IOWA 50010
October 2, 1991
Mr. Donald R. Newbrough
Attorney at Law
P.O. Box 30
Ames, Iowa 50010
Re: Conservation Easement - Parkridge 9th Subdivision
Dear Don:
This is in response to your letter of October 1 submitting the developer's
proposed "restrictive covenants" as an alternative to the "easement" pro-
posed by staff.
A "perpetual" conservation easement is expressly provided for by Section
111D.2 Code of Iowa. The 21 year limit under Section 614.24 of the Code
for restrictive covenants is, for that reason, arguably inapplicable.
Also, the 21 year limit of Sec. 614.24 was intended to affect only "nega-
tive" easements, but not "affirmative" grants of rights of use. Hawk v.
Rice, 325 N.W.2d 97 (Iowa 1982) ; Amana Society v. Colony Inn Inc. , 315
N.W.2d 101, 110 (Iowa 1982) . Arguably, the conservation easement is essen-
tially "affirmative", giving the public a limited use of the land as a
pleasing view, a haven for wild life, a barrier to winds, a retainer of
storm water, a nursery for propagation of new generations of trees, and a
reliquary for the bones and artifacts of primordial inhabitants. There-
fore, I will not advise the instrument be so drawn as to concede its dura-
tion to a 21 year limit.
The instrument proposed by the developer grants no rights to the city
other than to enforce the covenant running to the title holders. It seems
to me that if the title holders quit claimed away the covenants, there
would be nothing left for the city to enforce. Therefore, it is my advice
the instrument grant a conservation easement to the city.
Finally, the developer's proposal that structures similar to a "gazebo" be
permitted in the protected area is not acceptable to the staff.
Yours truly,
John R. Klaus
City Attorney
515 Clark Avenue, P.O. Box 811
Ames, Iowa 50010 y�
(515) 239-5146
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