HomeMy WebLinkAboutA001 - Letter from Bill Bartine, Attorney, Lot Frontage Ordinance f
BELIN LAMSON McCORMICK ZUMBACH FLYNN
A PROFESSIONAL CORPORATION
ATTORNEYS AT LAW
Mark McCormick Sue Luettjohann Seitz Sheila K.Tipton Garth D.Adams Silvia J.Hanel! Of Counsel
Steven E.Zumbach Jeremy C.Sharpe Mark E.Weinhardt Michael R.Reck Nathan J.Barber Jeffrey E.Lamson
Thomas L.Flynn John T.Seitz Dennis P.Ogden Wayne E.Reames Michael B.Abbott Danielle M.Shelton
Jon L.Staudt Robert A.Mullen Edward M.Mansfield S.Christian Nelson Nathanael J.Blake
James L.Krambeck Patricia A.Shoff Stephen R.Eckley Holly M.Logan David W.Nelmark David W.Belin
Richard W.Lozier,Jr. William D.Bartine David Swinton Lance W.Lange Tricia A.Johnston (1928—1999)
James V.Sarcone,Jr. Quentin R.Boyken Margaret C.Callahan Christopher McDonald Roger T.Stetson
James R Swanger Charles F.Becker Robert D Sharp Matthew C McDermott (1953—2004)
William D.Bartine
Direct Dial: (515)283-4616
Direct Fax: (515)558-0616
E-mail: wdbarfine@belinlaw.com
i
November 28,2006
Douglas Marek,Esq.
City Attorney
The City of Ames,Iowa
515 Clark Avenue,Room 252
P. O.Box 811
Ames,Iowa 50010
Re: Wolford Development Options—Lot Frontage Ordinance
Dear Doug:
Wolford Development Options, LLC has asked me to appear at tonight's meeting in support of
the recommendation by staff and the City Manager that the Council adopt Alternative #1 on the
subject of Code Amendments Related to Frontage Requirements.
The issue before the Council is whether the Municipal Code of Ames should be amended to
allow commercial lots that do not have frontage on public streets, provided that such lots obtain
legal access by means of a permanent easement. In my experience, it is customary in shopping
center developments for the owners of anchor stores and out-parcels (restaurants, banks, etc.
constructed around the perimeter of the center)to hold legal title to internal lots, or even lots that
is merely the footprint of the anchor store building. These owners typically obtain access,
parking, and utility service by means of a reciprocal easement agreement ("REA")entered into
with the project developer. In some instances, this arrangement is sanctioned by the
jurisdiction's zoning and subdivision laws. In others, it is established by means of a PUD
ordinance.
In most jurisdictions, the ordinances require street frontage for all residential lots. See the
definition of"Lot" in Section 134-2-3 of the Des Moines Municipal Code (" . . .Such lot shall
have frontage on a public street."); Section 9-3-5 of the West Des Moines Municipal Code ("no
lot shall contain any building used in whole or in part for residence purposes unless such lot
abuts for at least 40 feet on at least one street, or abuts common area formally established
666 Walnut Street,Suite 2000,Des Moines,Iowa 50309-3989
(5151243-7100 www.belinlaw.com
i
Douglas Marek,Esq.
November 28, 2006
Page 2
through a homeowner's association in which said lot owner has a legal interest'); and Section 4
of the General Zoning Regulations of Chattanooga, Tennessee (the home of Wolford
Development Options), which provides: " . . . every residential building hereafter erected,
reconstructed, or structurally altered shall be on a lot fronting a street. . . . " The staff report is
accurate in stating the reasons underlying the frontage requirements, namely to assure legal
access and to provide access to emergency and public utilities.
However, many jurisdictions provide a different rule for frontage on commercial lots. Section
134-1051 of the Des Moines zoning ordinance provides a more flexible rule applicable to the C-
4 shopping center commercial district, as set forth hereinafter:
Section 134-1051. Statement of Intent. (a) The C-4 shopping center district is
intended to provide for the development of shopping centers. For the purposes of
this division, the term "shopping center" shall mean a planned retail and service
area under single ownership, management, or control characterized by a
concentrated grouping of stores and compatible uses, with various facilities
designed to be used in common, such as ingress and egress roads, extensive
parking accommodations,etc.
The Des Moines City Attorney's office interprets this provision as allowing access to shopping
center lots via REAs.
West Des Moines handles this issue primarily through PUD ordinances, but my conversations
with the West Des Moines Planning Staff(Jessica Clinton, quoting Naomi Larson, the planner
assigned to the Jordan Creek Town Center), indicated that the West Des Moines Planning
Department allowed interior lots without street frontage because the anchor stores were tied to
the larger mall parcel by means of a very detailed REA.
Article 4 of the Chattanooga regulation cited above goes on to provide with respect to
commercial lots:
. . . Every non-residential building and/or structure hereafter erected,
reconstructed, or structurally altered shall be on a lot fronting a street or a
permanent recorded easement."
The City Planner at the City of Chattanooga thought there might be a concept of planning
commission approval of such access, but that shouldn't be surprising given that all of these
ordinances allow access by easement for sophisticated commercial users who are already subject
to a detailed planning process.
Therefore, Wolford Development Options, LLC agrees with the staff s assertion that access to
j regional commercial sites is often by means of permanent easement. The Master Planning
process required under the O-GNE Ordinance provides the planning oversight that is integral to
this arrangement; again, the price for the grant of this additional flexibility is a rigorous planning
process that ensures access and infrastructure support to the lot owners.
Douglas Marek,Esq.
November 28, 2006
Page 3
We want to clarify one aspect of the proposal. While the Developer believes that the economic
and legal interests of the lot owners will practically eliminate the risk of an amendment or
termination of access rights under the REA, we understand that the City would like input on
these decisions. However, if the City wants to be a party to the REA, its sole rights under the
REA need to be limited to control over the modification or termination of the legal access rights,
and for no other purposes. The first bullet point at the top of Page 3 of the Council Action Form
is acceptable,but the statement under the Manager's Recommended Action that the City needs to
be named as a party to the easements should be limited to issues of modification or termination
of the legal access rights.
Doug, I am continuing my research of this matter and I can provide you additional ordinances
and REAs to assist you in your drafting duties.
i
Sincerely yours,
i
William D.Bartine
For the Firm
WDB\cj
dAw0601\07\ltr-marek-11-28-06-wdb.doc
cc: Wolford Development Options, LLC
i
i
i