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Staff Reports
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Matt Rasmussen reported that he and Betty Hessing met with Mari Bunney and Mackenzie O’Hair within the past couple weeks and gave them an overview of the different types of annexations and types of actions that the Board typically sees. Matt Rasmussen stated he thinks they have a fairly good understanding of how the Board operates and what their responsibilities are. Chairperson Plautz and Jim Halverson will give some pointers and give more detail in what the Board does.
Matt Rasmussen reported that we do have a few annexations for next month, which includes a couple for Johnston and a couple 80/20’s for Altoona.
Emily Willits stated that after our last meeting, we talked about how to do some training since we have three new Board members. Ms. Willits stated she would walk through the training that she has done for new Board and Commission members, generally speaking, not specific to this Board. The Governor’s Office typically puts on an orientation session every Fall for new Board and Commission members and this is the presentation that she gives at that session.
Matt Rasmussen stated that since Jim Halverson was having to leave the meeting before it was over, we should do some Q&A with Jim Halverson and Chairperson Plautz first and then have Emily Willits give her presentation on the “Open Meetings, Open Records” Law.
Chairperson Plautz asked Jim Halverson to begin with pointers or anything that would be helpful for new Board members. Jim Halverson stated that he’s served on the City Development Board since 2000 and Dennis Plautz is the only other person who has served longer. Jim explained he has a background in Urban Planning. He used to be a Planning and MPO Director in the
Cedar Rapids area and now he does consulting work. A majority of the cases are unanimous consenting. On occasion we deal with county islands. This is where a city will make an application, or a third party initiates the process to address a number of county islands that exist within the city limits. 80/20 annexations are the ones that involve non-consenting owners or affected property owners that are being forced into an annexation. The term “forced” is just a loose term that he’s applying. The 80/20’s require a public hearing. We’ve been doing those more telephonically lately; when he was first appointed, we would often times travel to the venue and that’s where the hearing would be conducted. It still doesn’t mean that we don’t travel; it’s just less frequent.
I don’t know the backgrounds of you, but if you have some background in real estate—maybe you’ve served on a Planning Commission before or maybe you have some understanding of how city planning operates and growth management and those kinds of issues—that will be very helpful to you in this role. When we make decisions on 100% voluntaries, there is just one element to consider, but with 80/20’s or involuntary annexations, it typically involves a number of decisions, so you’re not casting a vote based on one decision. There is a series of findings that are made and that’s a good exercise because it not only creates a record, but it also leads you to certain conclusions along that path.
Dennis Plautz and I have sat through hearings that have lasted well over six hours. We’ve had times where we have continued the hearing to a second day. Those are rare, as we haven’t seen one of those in the last five years.
Jim Halverson stated that he really enjoys his service on the Board, which is reflected in his tenure. Department staff and Department of Justice attorneys are solid. We’ve had several attorneys from the Department of Justice over the years and they’ve all been great resources and help us through a lot of precarious situations. Emily Willits replied that they have to handle appeals, so they have an interest to make sure the Board gets it right, which you do.
Chairperson Plautz stated he would take off on what Jim just said. Chairperson Plautz stated he’s been on the Board since 1996, when Terry Branstad was Governor the first time, so it’s been awhile. The very first case I got thrown into was for Des Moines and West Carlisle, when Des Moines had that great big annexation. It was an involuntary and it went on for years. Just to show you how things differ from today—this case—which is very simple—and that case, which was very complex. When that ended, I was the only person on the Board when it started. Everybody else had moved on—with all the appeals and all of the Court proceedings—there are real extremes that you can go through—depending upon the people or the communities involved.
To Jim’s point, there are so many technical things—as long as I’ve been on—there are still things that come-up where I’m not sure—but because we are defended and advised, I think one of the best things to do if you have a question about what your role is or what the statute says, ask these guys. They are very good at advising us. For example, an attorney comes in and says, “Well, you can’t do this and this because this is what The Code says.” I would always look to Emily to see if she agrees with his interpretation of The Code, rather than interpret it ourselves.
The other thing to me, as I’ve seen things off and on over the years, there are places to insert our own opinions, but the most critical thing, is to rather give an opinion on a local issue, we’re sitting here to sit in judgement primarily on whether or not it meets the statutes and we’re here to act on what we have authority to act on and not insert our own opinions, but to follow what The Code says. I’ve noticed over the years, that can be very critical to separate the two and again, that’s where Betty, Matt and Emily can help us.
Chairperson Plautz asked Mari and Mackenzie if either one of them had background in real estate or Planning & Zoning or any of that. I think the main point there would be terminology. Sometimes there are things thrown out in some of these more complex petitions—if you wonder about the terminology of something, ask staff. They have always been good about answering questions.
The other thing to Jim’s point . . . these things vary a lot. One thing we have done, which I think over the years, we’ve streamlined what we do . . . we used to go to every place that required a public hearing . . . so we would go to Allamakee County and two people would show-up and we would be done in three minutes. So, we do a lot more teleconferencing which saves the State money. And as Jim said, we got all the islands out of the way—those were the worst over the years. Supposedly, there are no islands left. Matt Rasmussen replied that there are islands out there.
Chairperson Plautz stated those are a few comments . . . rather than getting into the technical, like “presumption of validity” and that kind of thing, but just generically. You will also get people who don’t want to know what the law says—they just don’t want to come into a city, or they want us to insert ourselves in the middle of local politics, which we should not be doing. Again, we should be interpreting the validity of the petitions and whether they are complying with statutes.
Matt Rasmussen stated that our conversations with both Mackenzie and Mari discussed what an island was and one of the things I did point out in The Code was the “presumption of validity” and I also pointed out the one word that is in there that was argued on recently, regarding “residents” and “wishes of the residents”. So, we did discuss the “presumption of validity” that the legislature inserted into it.
Chairperson Plautz told new Board members to not feel overwhelmed because there is a lot of stuff here. It will all come, and you will be veterans in about six months. Emily Willits told the new Board members that they are very fortunate because Dennis Plautz and Jim Halverson have a ton of experience and Matt Rasmussen and Betty Hessing do a terrific job of keeping everything organized. The Board packets prepared are so well organized. We have prepared motions for various types of proceedings for whomever makes the motion. Chairperson Plautz stated the process is easy because it’s prepared for us. You will go through one or two of them and it will be slick. There may be people who won’t like you anymore—that’s just the way life is—if you’re on a City Council, it’s the same thing.
Jim Halverson stated that knowing what our role is and sticking to that role . . . Dennis spoke to that issue very well. Many times, you will hear in cases about zoning and future land use and those kinds of things—there will be situations where the non-consenting folks or the opposition will want you to consider some things that are not necessarily germane. We don’t want to substitute our judgement for that of locally elected officials, be it City Councils or locally appointed bodies, like Planning Commissions. I would reinforce what Chairperson Plautz said earlier—we really want to focus on things that are germane to the role that we have. You will pick-up on this once you’re in a public hearing where there are a number of parties represented with a variety of different interests and you will get a better sense of what all this means when you start hearing some of the things you will likely hear.
Matt Rasmussen asked Jim Halverson or Dennis Plautz to talk about how an annexation works regarding zoning and where that falls in the process. Jim Halverson replied that it can vary, but what cities often do, is they will petition to annex a piece of property and then proceed with zoning and then platting it. Sometimes those processes happen simultaneously, but often times cities do represent applications that they file, but by the same token, a lot of times it’s either civil engineers that might be representing the city and/or an attorney. They may present material that shows a planned use. You might see a site development plan or maybe a plat of the area. The terms of the sequence of an event is pretty obvious in that a city can’t exercise their authority unless that area is part of the city itself and so that’s why they proceed with an annexation. The only minor exception to that rule is when a city has a 28E Agreement or Intergovernmental Agreements with the county they exist within, to do extraterritorial plat review. Sometimes that may trigger them advancing a plat, but generally speaking, they are going to want to have the area annexed before.
Chairperson Plautz stated the Iowa Code has a conflict there where cities can govern subdivisions within two miles of the city, but they don’t have the same authority for zoning, only if the county gives it to them. My take away, Jim, from that is it’s a local decision and it’s not our decision as to how a local body decides to zone property or use that property. Sometimes they want to put us in lieu of a Planning & Zoning decision or a City Council decision that has already been made and that’s not our purview. Jim Halverson agreed and stated that quite a few years ago, there was a case involving West Des Moines . . . it was really a question of a Conditional Use Permit being an issue. That became pretty obvious in the course of the public hearing. It was about a mining operation. Long story short, it just wasn’t something that was germane for us. Chairperson Plautz stated there is a lot of that that goes on where people want to put us in between local decisions and have us make decisions on things we have no authority to do and you don’t want the authority.
Matt Rasmussen stated that if you ever have a question, feel free to give me a call. There is no such thing as a dumb question.
Chairperson Plautz commented that with the legislature adjourned now, and they passed this Budget Bill for cities and counties, they have excluded from that 2% spending authority cap, debt service and they have also, as I understand it, excluded territorial expansion from spending, because the 2% is based on spending, not valuation. I’m thinking that every City Manager is going to think that one way to beat that is just annex a bunch of property, possibly. I could see that being very likely.
Another thing I would add is you can annex property in Iowa—I’m paraphrasing—if you need more land; if you need a certain type of land to recover services provided; but the one thing you specifically are prohibited from doing is annexing land solely for the purpose of raising revenue. I can see more friction coming as you get down the line a year or two, depending on whether they change the law again or whatever they do. That’s just a thought.
Matt Rasmussen stated that most of the annexations that we see—it’s the owners that go to the city to be annexed. It’s not like an 80/20 where there are non-consenting owners. So that would obviously not be a case where they are doing it just for a money-grab, if you will. Chairperson Plautz stated the public always says the city is doing it for the revenue only. You hear that all the time. Matt Rasmussen replied it would be hard to prove that the city is annexing just for the money. Emily Willits agreed.
Chairperson Plautz stated you can do 80/20’s to avoid the creation of an island or to create more uniform boundaries. That’s subjective to the Board. It will all sink-in as you get the cases. Mr. Rasmussen reiterated to just ask questions.
Chairperson Plautz stated we have had a number of people from the Attorney General’s Office over the years, but only three Board Administrators in those years.
Emily Willits stated she had a brief legal update regarding Mount Union. A year or so ago, the City of Mount Union discontinued. One of the roles of the Board following a discontinuance, is to basically almost act as a receiver, to take all of the money that’s left from a City and pay off any claims. Anything that’s left, goes to the County. There were some claims that came in and one of them involved a Court Judgement. A couple of individuals had sued the City for defamation because of some comments that the Mayor allegedly made, so they brought in this Judgement. The Board approved it because it was a Court Judgement. So, there are two lawsuits that have stemmed from that. One is an appeal of the Board’s decision so that’s been fully briefed and appealed to the Henry County District Court; it hasn’t been decided yet, but it’s been fully submitted to the Court. There is another lawsuit going on where the Board was initially named as a defendant, but we got dismissed out, but the lawsuit is still going on against the County and these two individuals who claimed that they were defamed.
I wanted to let the Board know that there have been some developments in that second lawsuit that we’re not a party to that might impact how the Court views the Judicial Review of the Board’s decision. Those developments in that second lawsuit are now going up on appeal. I think what we’re going to do, most likely, is move to stay the Judicial Review proceeding and say don’t decide this thing until all that’s worked out. Chairperson Plautz asked what the ramifications would be and Ms. Willits replied she didn’t think there are . . . the Board stayed its original decision to pay this claim, so whatever money is left is still sitting in the account for Mount Union—nothing has been paid out so it doesn’t change anything for the Board.
Chairperson Plautz asked Mr. Rasmussen if he talked to new Board members about incorporations, like Vedic City or Twin Lakes. Matt Rasmussen stated that every couple years, he will get a phone call from somebody considering forming a new city so he will forward them The Code and the rules regarding incorporation and what the requirement is. Since Matt has been the Administrator, we haven’t seen that type of action. Chairperson Plautz stated that in the years he’s been on the Board we’ve had three—we turned two down and then Vedic City, which is located by Fairfield, was approved. Vedic City went on for a long time.
Matt Rasmussen stated we did discuss a few involuntary actions that the Board has seen in the past few years. One was the involuntary severance in Marshalltown and the involuntary discontinuance from Luther a few years ago. Chairperson Plautz stated that discontinuances are a likely thing to see. Incorporations are a tough standard to meet. Matt Rasmussen stated we’ve averaged about one discontinuance per year since he’s been the Board Administrator. Matt stated he has not talked to any city official recently regarding discontinuance.
Chairperson Plautz stated we had a big severance in Clinton before Matt Rasmussen was Administrator. Clinton has 24,000 people and they have 36 square miles of land—they have tons of land that’s undeveloped. It was really a dispute—a way to get at the City Council by people who lived basically in a rural area, wanting to get their streets paved. In the end, they worked out a bunch of agreements and the severance wasn’t allowed. The more legitimate severances are where somebody is abutting somebody else and wants to sever from one city and be annexed into another city, like in the metro area. They are usually mutually agreed to. Mr. Rasmussen stated in the past couple years, we’ve seen a few of those. It’s a severance that the City Council approves and then the annexation that comes to the Board. The severance actually doesn’t need to come to the Board if it’s just a severance, but an annexation does. For example, West Des Moines and Waukee would both sever and then they would both annex, so they do a land swap. That’s not uncommon.
Emily Willits provided training regarding “Open Meetings/Open Records” law that she does for New Board and Commission Members at Governor’s Orientation Session. See Attachment A provided at end of minutes.
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