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HomeMy WebLinkAboutA10 1 1 IN THE IOWA DISTRICT COURT FOR STORY COUNTY ANGELA A. DOSS AND ) CASE No. CVCV-049182 DUANE M. HUFFER ) Plaintiffs, ) ORIGINAL NOTICE vs. ) ZONING BOARD OF ADJUSTMENT FOR ) CITY OF AMES, ) Defendant. ) TO THE ABOVE NAMED DEFENDANT(S): You are notified that a petition has been filed in the office of the clerk of this court naming you as the defendant in this action. A copy of the petition (and any documents filed with it) is attached to this notice. The attorney for the plaintiff(s) are Duane Huffer and Angela Doss, whose address is PO Box 1665, Ames, Iowa 50010. That attorney's telephone number is 515- 520-0359. Judgment may be entered against you unless you file an Appearance and Answer within 20 days of the service of the Original Notice upon you. Judgment may include the amount requested plus interest and court costs. You must electronically file the Appearance and Answer using the Iowa Judicial Branch Electronic Document Management System (EDMS) at https://www.iowacourts.state.ia.us/EFile, unless you obtain from the court an exemption from electronic filing requirements. If your Appearance and Answer is filed within 20 days, and you deny the claim, you will receive electronic notification through EDMS of the place and time of the hearing on this matter. If you electronically file, EDMS will serve a copy of the Appearance and Answer on Plaintiff(s) or on the attorney(s) for Plaintiff(s). The Notice of Electronic Filing will indicate if Plaintiff(s) is (are) exempt from electronic filing, and if you must mail a copy of your Appearance and Answer to Plaintiff(s). You must also notify the clerk's office of any address change. Duane M. Huffer AT0008924 Angela A. Doss #AT0009044 Attorneys at Law APR 1 3 2015 PO Box 1665 Ames, IA 50010 CITY CLERK Telephone: (515)520-0359 CITY OF AMES. IOWA dmhuffer@netzero.com E-FILED 2015 APR 09 12:08 PM STORY-CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT FOR STORY COUNTY ANGELA A. DOSS AND ) CASE No. C L' (_U _ U�(� � -:p,) DUANE M. HUFFER ) Plaintiffs, ) CERTIORARI PETITION vs. ) ZONING BOARD OF ADJUSTMENT FOR ) CITY OF AMES, ) Defendant. ) COMES NOW the Plaintiffs, Angela A. Doss and Duane M. Huffer, and representing themselves as attorneys, states the following to the Court: 1. That the Plaintiffs Angela A. Doss and Duane M. Huffer are residents of the City of Ames located in Story County, Iowa. 2. That the Defendant Zoning Board of Adjustment for City of Ames (hereinafter"Board of Adjustment") is the appropriate tribunal to appeal a City of Ames Zoning Officer's interpretation and enforcement of Ordinances for the City of Ames located in Story County, Iowa. 3. That on July 8, 2014, Ames City Planner Karen Marren sent a Notice of Violation Letter for only Section 29.408(2)(c)(iii)(b) for the Plaintiffs' property with a follow-up inspection after July 23, 2014, without mention or regard to Section 29.408(2)(c)(iii)(a) also being applicable as an exception on its own or a part of the exception. 4. That 29.408(2) (hereinafter noted as "Fence Ordinance") is: (2) Fences. (a) Applicability. These standards apply to all zoning districts except General Industrial (GI) and Planned Industrial (PI). I E-FILED 2015 APR 09 12:08 PM STORY- CLERK OF DISTRICT COURT (b) Types of Fences. These standards apply to walls, fences and screens of all types whether open, solid, wood, metal, wire, masonry, earthen, or other material. (c) Location and Height. (i) Height in Front Setbacks &Yards. The maximum height of fences in front setbacks and front yards is four(4) feet. (ii) Height in Side and Rear Setbacks. The maximum height for fences in side or rear setbacks is six (6) feet, except as further limited by this section in setbacks abutting street rights-of-way. (iii) Height in Setbacks Abutting Rights-of-way. The maximum height of fences in any setback abutting a street right-of-way is four(4) feet, except that up to six (6) feet of fence is allowed in any side or rear setback if: (a) The lot does not abut the front yard of any other residential property along the same side of the street; (b) The fence is at least five (5) feet from the property line abutting a street right-of-way. Within this five (5) foot area, landscaping is required consisting of one landscape tree for every 50 lineal feet and two high or three low shrubs for every ten lineal feet of area to be planted. (iv) Height Outside of Setbacks. The maximum height for fences that are not placed in setbacks is eight (8) feet, except that in any portion of a front yard fences shall not exceed four(4) feet. (v) Retaining Wall. In the case of retaining walls and supporting embankments, the above requirements shall apply only to that part of the wall above finished grade of the retained embankment, provided that the finished grade at the top of the wall or embankment extends at least 20 feet or if the available area is less than 20 feet,the grade extends to the principal structure. Otherwise, it will be considered an earthen berm and will be subject to the height limitation for fences. (vi) Visibility Triangle. All fencing shall meet the requirements of the visibility triangle as defined in section 29.408(5) of the Municipal Code. (d) Prohibited Materials. Barbed wire, razor wire, electric, and similar types of fences are prohibited. 5. That the Plaintiffs sent on July 15, 2015, a letter to Ames City Planner Karen Marren and Ames City Attorney questioning the city's interpretation of the Fence Ordinance. 6. That the Plaintiffs did not receive any further communication about the alleged Fence Ordinance until another Notice of Violation of the five foot setback dated December 19, 2014 was sent by Ames City Director of Planning and Housing Kelly Diekman acknowledging receipt 2 u_ E-FILED 2015 APR 09 12:08 PM STORY- CLERK OF DISTRICT COURT of the Plaintiffs July 15, 2014 letter and follow-up inspection occurring on July 24`h, 2014. 7. The Plaintiffs timely appealed the code interpretation of the Zoning Enforcement Officer pursuant to Section 29.1508(1) of Chapter 29 Zoning for the City of Ames. 8. That the Board of Adjustment on March 11, 2015, held a meeting where it received both oral and written evidence regarding the interpretation and application of the City of Ames Fence Ordinance. 9. That the Ames City Planner Karen Marren represented the City of Ames and admitted that the Fence Ordinance Section 29.408(2) of the City of Ames is not clear on its face both orally and in a written report presented to the Board of Adjustment and as a matter of City of Ames policy, there are more rules and regulations regarding fences then listed in the Municipal Code, that she meant to contact the Plaintiffs more than just sending the Notice of Violation to resolve the fence issue, and that the City Liaison was to have contacted the Plaintiffs and arrange for a meeting to resolve the fence dispute. 10. That the Plaintiffs' presented written and oral evidence through Angela Doss that the city's interpretation is not the plain meaning of the Fence Ordinance, that after receiving the Notice of Violation Ms. Doss found an admission on the City of Ames' website on one of the many Frequently Asked Questions pages stating the Fence Ordinance is difficult to interpret and one should ask the City of Ames the "correct" interpretation based on their property, the City of Ames does not consistently enforce the Fence Ordinance with the interpretation it is using, the City of Ames waited from July 24"', 2014, follow-up inspection until December 19`h, 2014, follow-up letter after the ground was frozen and that section of the fence was substantially complete in July 2014, the requirement of the fence being five feet off the property Iine 3 E-FILED 2015 APR 09 12:08 PM STORY- CLERK OF DISTRICT COURT potentially would make the fence no longer a partition fence under Iowa Code, and the only communication from the City of Ames was the two Notice of Violation letters with no further contact from Planning and Zoning or the City Liaison. 11. That Angela Doss provided copies of the letter sent to the City Attorney and Ames City Planner Karen Marren showing the fence in question is also 37 feet 5 inches back from Stange Road and 21 feet 5 inches from the bike path with tall lilac shrubs covering the fence from street and bike path view, when only a 20 foot setback from the curb is required on a corner lot by Visibility Triangle defined in section 29.408(5)of the City of Ames Municipal Code. 12. That the neighbor Ward Leek testified he has an issue with the fence being six feet tall while the neighbor abutting the other side of his property likewise has a six foot tall fence. 13. That Mr. Leek's daughter testified that a semicolon based on her experience is always an "and" when it separates items in an ordinance. 14. That a second Planning and Zoning Officer Charlie Kuester testified that the City of Ames does not always enforce the fence ordinance, the fence ordinance is unclear so fence contractors call him to figure out what is legal on a particular lot because each lot is different, he recommends homeowners hire local contractors that he deals with since they usually know the interpretation of the Fence Ordinance, when there is a violation he talks to the fence contractor to try to resolve the issue, when there is an unresolved violation the City Liaison is to contact the party as part of the procedure to help resolve the issue, and the violation is not always enforced especially when contractors are involved. 15. That the Board of Adjustment relied on both Planning and Zoning Officers' statements that the City of Ames website has a.Frequently Asked Question section that states the 4 E-FILED 2015 APR 09 12:08 PM STORY- CLERK OF DISTRICT COURT Municipal Code is hard to interpret when it comes to fences when that section is not in the top 20 items found when searching "fence"on the City of Ames website or using general intemet search engines with "fence," "Ames,"and "municipal code"as search terms. 16. That the Board of Adjustment asked Angela Doss why she did not ask Ames City Planning and Zoning how to interpret the Ames Municipal Code and she replied that the problem with interpretation was not apparent until after the letter from the City of Ames Planner and if she knew that it was a problem during the planning stages to build the fence in the fall of 2013, a variance would have been sought due to the ability of our dogs to get over a four foot fence especially when there is a foot of snow, our dogs already were putting their paws on the top of a four foot fence when people would come pet them from the bike path along Stange Road and a variance would have been sought to prevent potential dog bite issues with a six foot fence, the property line is so far back from the street and bike path with shrubs in front of the fence, and a six foot fence is on the rear property line abutting Stange Road on the other side of the complaining party and another such fence abutting Torrey Pines Rd. is located across the street from the Plaintiffs' home. 17. That Assistant City of Ames Attorney Jessica Spoden when asked by the Board of Adjustment about how to interpret use of a semicolon in the city code responded that a semicolon is used to separate two closely related independent clauses and does not indicate the relationship between the clauses as an "and"or"or" may be equally valid. 18. That the City of Ames Planning and Zoning Officials, Board of Adjustment, and City Council changes the interpretation of the Fence Ordinance as part of"public policy" as noted in Board of Adjustment and City Council meeting minutes to include the prohibition of not 5 E-FILED 2015 APR 09 12:08 PM STORY-CLERK OF DISTRICT COURT allowing fences to cross water right of ways and easements and other prohibitions not specifically stated in the municipal code without notice to the residents of Ames. 19. That the Board of Adjustment did not review the exhibits provided by the Plaintiffs or review the testimony and after a few minutes of discussion that a semicolon implies an"and" and not ever an "or" found the interpretation of the City Planner was correct. 20. That the Plaintiffs assert on Appeal with this Petition of Certiorari that the Board of Adjustment made the following errors: a. That the interpretation of the Fence Ordinance with Section 29.408(2)(c) with the semicolon being an implied"and"is not clear on the face of the ordinance and has to be an "or" by grammatical use of semicolons and the language used in Section 29.408(2)(c) when compared to other language in Section 29. See Greenawalt v. Zoning Bd. of Adjustment of City of Davenport, 345 N.W.2d 537 (1984),Lewis v. Jaeger, 818 N.W.2d 165 (2012) b. That the lack of consistent enforcement and no procedure to enforce except on a complaint basis since there is no permit process the City of Ames estops from enforcing an interpretation that is not clear and enforcement is not consistent between homeowners and contractors building fences. See Greenawalt v. Zoning Bd. ofAdjustment of City of Davenport, 345 N.W.2d 537 (1984),Haag v. Tudor, 695 N.W.2d 506 (2005) c. That the delay in enforcement from follow-up inspection on July 24, 2014 to December 19, 2014, letter prevents the City-of Ames from enforcing the Ordinance on procedural grounds and due to laches. See McCartney v. Schuette, 243 Iowa 1358, 54 N.W.2d 462(1952); City of Marshalltown v. Reverson, 535 N.W.2d 135 (1995). d. That there is a notice issue with due process between the Fence Ordinance and 6 E-FILED 2015 APR 09 12:08 PM STORY- CLERK OF DISTRICT COURT interpretation of the Fence Ordinance since the City of Ames admits that the interpretation is not consistent with the wording used in the municipal code and the City of Ames as part of public policy changes the "interpretation rules"regarding the Fence Ordinance at any time. See Lewis v. Jaeger, 818 N.W.2d 165 (2012). e. That the Fence Ordinance conflicts with State of Iowa Partition Fence law with not allowing a fence that reasonably restrains animals on a property to be on the property line while also allowing other property owners to claim the fence is the property line through adverse possession when the fence cannot be installed on the property tine due to the Fence Ordinance. See Gravert v. Nebergall, 539 N.W.2d 184 (1995), Burleigh &Jaclkron v. Hines, 124 Iowa 199, 99 N.W. 723 (1904). 21. That the Plaintiffs request the Court to grant a Stay of the Zoning Board Order pending the results of this case due to cutting the fence down to four feet or moving the fence five feet from the property line would greatly increase costs if the six foot fence is found to be allowed and moving or cutting the fence would make the issue moot. WHEREFORE, the Plaintiffs pray that the Court interpret Section 29.408(2)(c)(iii) of the City of Ames Municipal Code to include an implied "or" according to grammatical usage between the independent clauses in subsections (a) and (b) or to excise all of Section 29.408(2)(c)(iii). Plaintiffs further pray that Section 29.408(2)(c)(iii)be found not to be enforceable due to the City of Ames's non-enforcement of the Fence Ordinance, laches, and/or due process issues with regards to interpretation when there is no notice of the City of Ames's interpretation of the municipal code and the City of Ames could easily change the interpretation of the Municipal 7 E-FILED 2015 APR 09 12:08 PM STORY-CLERK OF DISTRICT COURT Code at any time especially since the City of Ames admits the code does not clearly state its own interpretation. Plaintiffs further pray that Section 29.408(2)(c)(iii) be found not to be enforceable due to the conflict with Chapter 359A of the Iowa Code dealing with partition fences and specifically with Iowa Code §359A.16 (2015) allowing a partition fence to be on the property line. Plaintiffs further pray that Defendant pays for costs of this action including the filing fees for the lower tribunal, all attorney's fees and to award such other and further relief as the Court may deem just and equitable. /s,/ Duane M. Huffer #AT0008924 /s/ Angela A. Doss #AT0009044 Attorneys at Law PO Box 1665 Ames, IA 50010 Telephone: (515)520-0359 dmhuffer�c,netzero.com 8