HomeMy WebLinkAboutA001 - Legal Opinion dated July 16, 1997, public hearing, notice r
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TO: Sandra Ryan, City Clerk
Brian O'Connell, Planning and Housing Director
FROM: John R. Klaus, City Attornelk
DATE: July 16, 1997
SUBJECT: Historic Preservation Ordinance Changes
Changes to Historic Preservation District regulations should, according to the attached November
18, 1988 opinion of the Iowa Attorney General, be enacted in accordance with the procedures that
pertain to enactment of zoning regulations.
In that regard there must be a public hearing by the Council following a week's published notice; and,
opportunity for review and comment by the Planning and Zoning Commission per Section 29.70
Ames Municipal Code.
t
MUNICIPALITIES : Zoning; Historical Significant Areas . Iowa Code
Ch. 176B, 414 ( 1987 ) ; Iowa Code §§ 303 . 20 through 303 . 33, 303 . 34 ,
303 . 34 (4 ) , 380 . 4 , 414 . 1, 414 . 2 , 414 . 3 , 414 . 5, 414 . 21 ( 1987 ) ; 1988
Iowa Acts, ch. 2348, § 8 ; 1980 Iowa Acts , ch. 1091 , §§ 1, 2, and
3 . A city, in designating an area of historical significance
pursuant to Iowa Code § 303 . 34 ( 1987 ) , must comply with the
substantive and procedural requirements for exercise of the
general zoning power found in Iowa Code ch. 414 . Accordingly,
passage of an ordinance designating an area as an historically
significant area would, upon written protest filed in compliance
with the requirements of § 414 . 5, as amended, require the
favorable vote of at least three-fourths of all council members
pursuant to § 414 .5, as opposed to an affirmative vote of not
less than a majority of the council pursuant to § 380 . 4 .
(Walding to Bruner, State Senator, 11-18-88) #88-11-2(L)
November 18, 1988
The Honorable Charles Bruner
State Senator
922 Arizona
Ames, Iowa 50010
Dear Senator Bruner:
We are in receipt of your request for an opinion of the
Attorney General regarding the designation of an area of
historical significance within the limits of a city. - The City
of Ames, we are told, is exploring the possibility of designating
an historically significant area .
A procedural issue has been posed as to whether an ordinance
designating an area of historical significance is enacted in the
manner as other ordinances, or whether the specific procedure for
land use zoning ordinances must be followed. Specifically, the
issue is whether, upon written protest filed in compliance with
_ lower Code § 414 . 5 (1987 ) , 2 passage of an ordinance designating an
lAs observed in a prior opinion of this office, 1982
Op.Att'yGen. 509 (#82-8-8(L) ) , fn. 1 : "Note that a city merely
designates an area of historical significance; a separate
historical preservation district is not established [as provided
_. for in Iowa Code §§ 303 . 20 through 303 . 33 ] . "
2Iowa Code § 414 .5 ( 1987 ) , as amended by 1988 Iowa Acts ,
Ch. 2438, § 8, provides for a greater number of votes for passage
of an ordinance if a written protest 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
(continued . . . )
The Honorable Charles Bruner
Page 2
area as an area of historical significance requires simply a
majority pursuant to Iowa Code § 380 . 4, or whether the ordinance
requires the favorable vote of at least three-fourths of all the
members of the council pursuant to Iowa Code § 414 .5, as amended.
It is our opinion that, in designating an area of historical
significance pursuant to § 303 . 34, a city must comply with the
substantive and procedural requirements for exercise of the
general zoning power found in Iowa Code ch. 414 . Accordingly,
passage of an ordinance designating an area as an historically
significant area would, upon receipt of a § 414 .5 protest,
require a super-majority of the council members . Thus, a
favorable vote of five council members would be required to
obtain the necessary three-fourths vote of Ames ' six-member
council, as opposed to a simple majority of four.
A review of the applicable statutes , legislative history and
prior opinions will support that conclusion. Our analysis begins
with Iowa Code § 303 . 34 ( 1987 ) . 3 The provisions of Iowa Code
2( . . .continued)
within two hundred feet of the exterior boundaries of the
property for which the change or repeal is proposed. "
3The procedure by which a city designates an area of
historical significance was described in the 1982 opinion.
In 1982 Op.Att'yGen. 509 , we observed:
A separate procedure, however, is to be
followed for a city to designate an area it
deems to merit preservation as an area of
historical significance. The process is
initiated either by the governing body of the
city or by .a petition of the residents _
therein. See § 303 . 34 (1) , The Code 1981 . A
description of the proposed area of histori-
cal significance is submitted to the
[historical division of the Department of
Cultural Affairs] . Id. Following the
division's review, enactment of an ordinance
of the city is required before an area may be
designated as an area of historical
significance. See S 303.34 (4 ) , The Code
1981 .
(continued. . . )
k
The Honorable Charles Bruner
Page 3
SS 303 . 20 through 303 . 33, which provide for the establishment of
historical preservation districts, expressly do not apply within
city limits . Iowa Code § 303 .34( 1 ) ( 1988 ) . Section 303 . 34 was
enacted in 1980 to permit cities to provide for historical
preservation. See 1980 Iowa Acts, ch. 1091 , § 1 . Subsection 4 ,
in part, states :
An area shall be designated an area of
historical significance upon enactment of an
ordinance of the city. Before the ordinance
or an amendment to it is enacted, the
governing body of the city shall submit the
ordinance or amendment to the historical
division for its review and recommendations .
[Emphasis added] . Iowa Code S 303 . 34 (4 ) .
3 ( . . .continued)
The division, however, is limited to
recommendations concerning the proposed area
of historical significance within the limits
of a city. See 9 303 . 34 ( 1 ) , The Code 1981 .
Once . . . an area within the limits of
a city is designated an area of historical
significance, it should be observed that the
division has no authority.
Suffice it to say, a city has greater
discretion [than does a historical preserva-
tion district] in the establishment of a
commission to deal with matters involving
areas of historical significance. See
S 303 . 34 ( 3 ) , The Code 1981 .
A city, upon establishment of a
commission, must provide by ordinance for the
powers and duties of the commission. See
§ 303 . 34 ( 3 ) , The Code 1981 .
(Footnote omitted) .
The Honorable Charles Bruner
Page 4
Section 303 . 34 apparently was added, see 1980 Iowa Acts,
ch. 1091 , § 1, in response to this office's opinion that the
zoning power granted to municipalities authority to zone for
historic purposes . The opinion, 1980 Op.Att'yGen. 591, reversed
a prior opinion, 1976 Op.Att'yGen. 844, and concluded:
1 . The existence of Ch. 303 . 20-. 33 may
not preempt cities from passing local
ordinances of a similar nature under Ch. 364
home rule powers because the two acts-are not
necessarily irreconcilable. Section 303 . 20-
. 33 does not show a clear intention to
preempt the field.
2 . However, even if the answer to the
first question were yes, that cities are
preempted under Ch. 364 , the zoning power of
Ch. 414 includes the power to zone to
preserve historic districts . The zoning
power, delegated to the cities by the Home
Rule amendment, and as limited by Ch. 414 is
not removed merely by the enactment of
§ 302 . 20- . 33 .
1980 Op.Att'yGen. at 592 . Thus, the 1980 opinion rejected the
earlier view pronounced that, because municipal zoning power was
irreconcilable with §§ 303 . 20 through 303 . 33, a municipality
could not enact a zoning regulation merely for aesthetic purposes
and thus a city was preempted from enacting such an ordinance.
It is important to note that the 1980 legislation which
added § 303 . 34 also contained language amending Iowa Code Ch. 414
to specifically grant cities the power to zone for historic
purposes .
Iowa Code § 414 . 1, as amended by 1980 Iowa Acts, ch. 1091,
§ 2, provides :
For the purpose of promoting the health,
safety, morals,. or the general welfare of the
community or for the purpose of preserving
historically significant areas of the
community, any city is hereby empowered to
regulate and restrict the height, number of
stories, and size of buildings and other
structures, the percentage of lot that may be
occupied, the size of yards, courts, and
other open spaces, the density of popula-
tion, and the location and use of buildings,
The Honorable -Charles Bruner
Page 5
structures, and land for trade, industry,
residence, or other purposes .
[ 1980 amendment in emphasis] . For any of the purposes set forth
in § 414 . 1 , section 414 . 2, as amended by 1980 Iowa Acts ,
ch. 1091 , S 3, provides :
For any or all of said purposes the
local legislative body, hereinafter referred
to as the council, may divide the city into
districts, including historical preservation
districts but only as provided in section
303 . 34 , of such number, shape, and area as
may be deemed best suited to carry out the
purposes of this chapter; and within such
districts it may regulate and restrict the
erection, construction, reconstruction,
alteration, repair, or use of buildings ,
structures, or land. All such regulations
and restrictions shall be uniform for each
class or kind of buildings throughout each
district, but the regulations in the district
may differ from those in other districts .
[ 1980 amendment in emphasis ] . The purposes for the regulations
that may be established under S 414 . 2 are set forth in § 414 . 3 .
These purposes include a reasonable consideration "as to the
character of the 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. "
The narrower issue, therefore, is whether the language in
S 303 . 34 is reconcilable with the relevant provisions in Ch. 414 .
Clearly, in enacting 1980 Iowa Acts, ch. 1091 , the Iowa General
Assembly intended that S 303 . 34 be reconcilable with Ch. 414 .
Referring to relevant principles of statutory construction, we
note that the polestar is to ascertain and give effect to
legislative intent. American Home Products Corp. v. Iowa State
Board of Tax Review, 302 N.W. 2d 140 ( Iowa 1981 ) ; Doe v. Ray, 251
N.W. 2d 496 , 501 ( Iowa 1977 ) . Further, in construing a particular
statute, all provisions of that act and other pertinent statutes
must be considered. Maguire v. Fulton, 179 N.W. 2d 508 ( Iowa
1970 ) ; Goergen v. State Tax Commission, 165 N.W. 2d 782 ( Iowa
1969 ) . Finally with reference to Iowa Code Ch. 4 ( 1987 ) , which
governs construction of statutes, S 4 . 7 states : "If a general
provision conflicts with a special or local provision, they shall
be construed, if possible, so that effect is given to both . " The
Iowa Supreme Court has consistently reiterated that in construing
a statute it must be harmonized, if possible, with other statutes
The Honorable Charles Bruner
Page 6
relating to the same subject. Doe v. Ray, 251 N.W. 2d at 501;
France v. Bentes, 256 Iowa 534, 128 N.W. 2d 268 ( 1964 ) .
Further, it is observed that in the 1980 opinion we
declared:
The exercise of the zoning power by a city,
would not conflict with the existence of a
historical district created under Ch. 303 .
If a local historic district has been created
and a city also wished to zone for historic
purposes , any conflict in the standards
created by the two forms of regulations
would be resolved by S 414 . 21 . This section
essentially provides that whenever "any other
statute or local ordinance or regulation"
requires standards higher than those set by
Ch. 414, that the higher standards apply and
vice versa. Therefore § 414 . 21 would prevent
historic district regulations under § 303 . 20-
. 33, and historic zoning regulations under
Ch. 414 from ever being "inconsistent" or
"irreconcilable" .
1980 Op.Att'yGen. 591, 593. Thus, Iowa Code S 414 . 21 ( 1987 ) , as
amended by 1982 Iowa Acts, ch. 1199, S 68, would resolve any
conflict or inconsistency in the law in favor of the higher
standard.
Finally, in a 1982 opinion, 1982 Op.Att'yGen. 510, we
examined the relationship between historical preservation
districts, §§ 303 . 20 through 303 .33, and land preservation and
use provisions, Iowa Code Ch. 176B. At issue in that opinion was
_ whether the enforcement mechanisms in the land preservation and
use provisions could be extended to historical preservation
districts . We opined that the land use enforcement provisions
found in Ch. 176B were not irreconcilable with, and were indeed
complementary to, Chapter 303's historical preservation district
provisions, and therefore we concluded that the two statutes
could be read together. In concluding the 1982 opinion, we
declared: " [O]nce an historical preservation district is
independently established, it may be recognized, subject to the
discretion of the county, as a part of a [Ch. 176B] land
preservation and use plan and enforced accordingly. " Thus, this
office has previously determined Ch. 303 is to be reconciled, if
possible, with other related statutes governing land use
planning.
Accordingly, we conclude that § 303 . 34 and ch. 414 are
reconcilable. In our view the statutes, when read together,
The Honorable Charles Bruner
Page 7
require the stricter standard of a three-fourths favorable vote
for designation of an area as an historical significant area .
In summary, a city, in designating an area of historical
significance pursuant to Iowa Code S 303 . 34 ( 1987 ) , must comply
with the substantive and procedural requirements for exercise of
the general zoning power found in Iowa Code ch. 414 . Accord-
ingly, passage of an ordinance designating an area as an
historically significant area would, upon written protest filed
in compliance with the requirements of g 414 . 5 , as amended,
require the favorable vote of at least three-fourths of all
council members pursuant to § 414 . 5 , as opposed to an affirmative
vote of not less than a majority of the council pursuant to
S 380 . 4 . Thus , a favorable vote of five, rather than four,
council members would be required for the Ames City Council to
designate an historically significant area .
Sincerely,
LYNN M WALD G
Assistant Attorney General
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