HomeMy WebLinkAbout2019-08-19-J03 Fence Amendment_2310 SE Aster Ct AGENDA ITEM:
CITY OF WAUKEE, IOWA
CITY COUNCIL MEETING COMMUNICATION
MEETING DATE: August 19, 2019
AGENDA ITEM: Consideration of approval of a resolution approving Agreement Concerning
Construction of Fence [2310 SE Aster Court]
FORMAT: Resolution
SYNOPSIS INCLUDING PRO & CON: At the August 5th City Council Meeting, the property
owner of the property located at 2310 SE Aster Court requested the City
Council consider allowing for the construction of a fence within a landscape
buffer easement located along SE Westown Parkway which backs up to the
property.
Please see attached memo regarding further information on the issue as well
as staff’s recommendation.
FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS:
COMMISSION/BOARD/COMMITTEE COMMENT:
STAFF REVIEW AND COMMENT: Based upon the analysis provided in the staff memo dated
8/14/19, staff would recommend that the proposed resolution not be approved.
RECOMMENDATION: Deny the resolution.
ATTACHMENTS: I. Proposed Resolution
II. Staff memo dated 08/14/19
PREPARED BY: Brad Deets, Development Services Director
REVIEWED BY:
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M emo
Waukee City Hall 230 Highway 6 Waukee IA 50263
Office: (515) 987-4522 Cell: (515) 250-7986 Facsimile: (515) 987-1845
To: Mayor and City Council Members
CC: Tim Moerman, City Administrator
From: Brad Deets, Development Services Director
Date: August 14, 2019
Re: Request for Modification of Landscape Buffer – 2310 SE Aster Court
Attach:
Request: At the August 5, 2019 City Council Meeting, Drew Clemmensen, the property owner of
2310 SE Aster Court, requested that the City Council consider allowing a fence to be installed within
the existing Landscape Buffer easement along SE Westown Parkway. The owner is requesting
permission to install the fence 10 feet from the property line instead of the 25 feet required per the
landscape buffer easement.
Background: Requirements for landscape buffers along double frontage lots were modified in 2012 to
require a minimum 25 foot landscape buffer along the frontage that would be considered the rear of the
property. Previously, there had been a requirement for a 10 foot buffer. The purpose of the landscape
buffer is to provide space between the public street and the adjoining yards to allow for adequate
landscaping to be installed to create a natural buffer along the adjoining street and to reduce the
appearance of fences being constructed right up adjacent to the sidewalk.
The required buffer is common across the metro area and is very apparent in other neighboring
communities such as Clive, Urbandale and West Des Moines. In Waukee, perhaps the most complete
area where the current 25 foot buffer requirement has been implemented is along Douglas Parkway
between Alice’s Road and Warrior Lane. There are also areas along LA Grant Parkway that were
developed with the current 25 foot buffer requirement.
As a part of the final platting process, a Landscape Buffer easement is established and recorded with the
plat which among other things, restricts the construction of fences within the easement area.
There are two additional properties along SE Aster Court that have secondary front yards backing up to
SE Westown Parkway. Both neighboring properties have constructed fences outside of the landscape
buffer at the 25 foot requirement per the easement requirements. There are also several homes on the
north side of SE Westown Parkway within the Glynn Village Development which have constructed
fences outside the limits of the established landscape buffer.
Process: Because the landscape buffer is established as an easement, the City Council is the only body
that can either modify or eliminate the easement language. In order to allow for the fence to be
constructed as originally proposed, the City Council would have to approve an Amendment to the
Easement to modify the language to allow for the construction of a fence within the easement area. If
the City Council chose to move forward with the amendment to the easement, then the property owner
would be required to request a height variance from the Zoning Board of Adjustment as the fence could
M emo
Waukee City Hall 230 Highway 6 Waukee IA 50263
Office: (515) 987-4522 Cell: (515) 250-7986 Facsimile: (515) 987-1845
only be a total height of four feet within what is considered a front yard setback. In this case, the
property owner desires to construct a combination of 5 foot and 6 foot tall fence panels.
The map above highlights the Clemmensen property in blue along with the two neighborhing properties
to the east that have installed fences at the 25 foot setback.
Recommendation: It would be staff’s recommendation to not amend the easement language to allow
for the fence for the following reasons:
1. Landscape buffering requirements are established within the Zoning Ordinance and in addition
an easement was established upon the property which included specific provisions restricting
the construction of fences within the easement area.
2. The purpose of the landscape buffer is to provide relief from the appearance of large fences
abutting the public sidewalk.
M emo
Waukee City Hall 230 Highway 6 Waukee IA 50263
Office: (515) 987-4522 Cell: (515) 250-7986 Facsimile: (515) 987-1845
3. A modification related to this specific property would be contrary to other property owners
adjacent to this property and within the City that have the same landscape buffering
requirements and have complied with the setback.
Should the Council have any questions regarding any of the information provided within this memo,
please do not hesitate to give me a call at 978-7899.
THE CITY OF WAUKEE, IOWA
RESOLUTION 19-
APPROVING AN AGREEMENT CONCERNING CONSTRUCTION OF FENCE
[2310 SE ASTER COURT]
IN THE NAME AND BY THE AUTHORITY OF THE CITY OF WAUKEE, IOWA
WHEREAS, the City of Waukee, Dallas County, State of Iowa, is a dul y organized Municipal
Organization; AND,
WHEREAS, ANDREW R AND ANDREA L CLEMMENSEN, are the owners of Lot 16 of
Stone Prairie Plat 1 (“Property Owners”); AND,
WHEREAS, the Property Owners are desirous of installing a fence on the property; AND,
WHEREAS, Ames Community Bank, an Iowa banking corporation, , predecessor in title to the
Property Owners, granted that certain Landscape Buffer Easement, dated July 19, 2010, recorded
on August 23, 2010, in Book 2010, Page 10644, and that certain Overland Flowage Easement,
dated July 19, 2010, recorded on August 23, 2010, in Book 2010, Page 10643 (collectively the
“Easement”) AND,
WHEREAS, the fence is intended to be erected within a portion of the Easement; AND,
WHEREAS, the Easement prohibits the Property Owner from locating any fence or other
structure within the Easement area without the written consent of the City of Waukee; AND,
WHEREAS, the City of Waukee is agreeable to the construction of a fence within a portion of
the Easement area pursuant to the terms of the Agreement Concerning Construction of Fence.
NOW THEREFORE BE IT RESOLVED by the City Council of the City of Waukee, Iowa on
this 19th day of August, 2019 that the Agreement Concerning Construction of Fence in
connection with the Property is hereby approved and accepted by the City of Waukee, and the
City Clerk is hereby authorized to file such first amendment to easement with the Dallas County,
Iowa Recorder.
____________________________
William F. Peard, Mayor
Attest:
___________________________________
Rebecca D. Schuett, City Clerk
RESULTS OF VOTE: AYE NAY ABSENT ABSTAIN
Anna Bergman
R. Charles Bottenberg
Courtney Clarke
Shelly Hughes
Larry R. Lyon
WHEN RECORDED RETURN TO:
Rebecca D. Schuett
Waukee City Clerk
230 W. Hickman Road
Waukee, Iowa 50263
Preparer
Information: Bradly Deets, City of Waukee, 230 W. Hickman Road, Waukee, Iowa 50263 Phone: (515) 987-4522
_______________________________________________________________________________________________________
AGREEMENT CONCERNING CONSTRUCTION OF FENCE [2310 SE ASTER
COURT]
This Agreement of Consent (“Agreement”) is entered into by and between ANDREW R
& ANDREA L CLEMMENSEN, (the “Property Owners”) and the CITY OF WAUKEE, IOWA,
a municipal corporation (hereinafter called “City”).
WHEREAS, Property Owners own that property legally described as:
Lot 16 of Stone Prairie Plat 1, City of Waukee, Dallas County, Iowa
WHEREAS, Ames Community Bank, an Iowa banking corporation, predecessor in title
to the Property Owners, granted that certain Landscape Buffer Easement, dated July 19, 2010,
recorded on August 23, 2010, in Book 2010, Page 10644 and that certain Overland Flowage
Easement, dated July 19, 2010, recorded on August 23, 2010, in Book 2010, Page 10643
(collectively the “Easement”) to the City, which prohibited the construction of permanent
improvements within the easement area, as such real estate identified on Exhibit A, attached
hereto and incorporated herein by this reference (hereinafter called "Easement Area"), without
the consent of the City.
WHEREAS, the Property Owners desire to construct a fence on a portion of the Property
that is located within the Easement Area, and the City has agreed to consent to the erection of
such fence on a portion of the Property that is located within the Easement Area, subject to the
conditions set forth in Section 2 in this agreement.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto do hereby agree as follows:
1. CITY CONSENT TO ERECTION OF FENCE. The Easement prohibits
Property Owners from locating any fence or other structure under, over, on, through, across or
within the Easement Area without obtaining the prior written consent of the City. Property
Owners desire to construct a fence on a portion of Property that is located within the Easement
Area at the location identified on Exhibit B, attached hereto and incorporated herein by this
reference. The City hereby consents to the construction of the fence at the location identified on
Exhibit B, within the Easement Area subject to, and conditioned upon, the provisions of this
agreement.
2. MAINTENANCE AND LIABILITY. The Property Owners acknowledge and
agree that in the event that the City exercises its rights under the Easement, including the rights
to construct, reconstruct, repair, replace, enlarge, inspect and maintain the storm sewer line and
or overland flowage, the City's duty of restoration for the portion of the Property located in the
Easement Area shall be limited to grading and replacing grass, sod or any other ground cover
(but not including repair or replacing any paved roadway, driveway, sidewalk, parking, curb,
trees or shrubs). In no event shall the City be responsible for any reconstruction, replacement,
repair or maintenance of the fence or any improvements or structure located on the Property
within the Easement Area. Property Owners further understands and agrees that upon 30 days
written notice from the City, Property Owners shall remove the fence and associated material
from the easement area, and restore the easement area to its state prior to the installation of the
fence, at property owners sole cost and expense.
3. NO CHANGE. This agreement does not alter, modify or otherwise change any
Easement. The consent afforded hereunder is conditional and subject to revocation by the City as
provided herein. The consent afforded by the City under this agreement is limited t o the specific
fence and location provided herein. The Property Owners are aware of the terms of the Easement
and understands that the consent afforded herein does not alter or otherwise change Property
Owners responsibilities as more particularly set forth in the easement in any way.
4. HOLD HARMLESS. The Grantor(s), subsequent property owners, their
successors and assigns agrees to indemnify and hold harmless the City, its elected officials,
employees, officers, agents, representatives, contractors, and attorneys from and against any and
all claims or demands for liability, loss, damage, costs, expenses, or attorney's fees of any kind
for actions or omissions of the Grantor(s) in the easement area, or in any way arising out of or in
connection with any occurrence in any way related to this Easement or the location, placement,
construction and/or erection of the fence within the easement area.
5. RUNS WITH THE LAND. This Agreement shall be deemed to run with the land
and shall be binding on the Property Owners and on the Property Owners’ heirs, successors and
assigns.
6. APPROVAL BY CITY COUNCIL. This Agreement shall not be binding until it
has received the final approval and acceptance by the City Council by Resolution which approval
and acceptance shall be noted on this Agreement by the City Clerk.
The Property Owners do HEREBY COVENANT with the City that (i) the Property
Owners hold said real estate described in this Agreement by title in fee simple; (ii) that the
Property Owners have good and lawful authority to convey the same; and (iii) the Property
Owners covenant to WARRANT AND DEFEND the said premises against the claims of all
persons whomsoever.
Words and phrases herein, including acknowledgment hereof, shall be construed as in the
singular or plural number, and as masculine or feminine gender, according to the context.
Signed this ___ day of ______________, 2019.
PROPERTY OWNERS
________________________________
ANDREW R. CLEMMENSEN
________________________________
ANDREA L CLEMMENSEN
By: ___________________________
William F. Peard, Mayor
Attest:
_____________________________
Rebecca D. Schuett
City Clerk
STATE OF IOWA )
) SS
COUNTY OF __________ )
On this _____ day of __________________, 2019, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared ANDREW R CLEMMENSEN, to me
known to be the identical person named in and who executed the foregoing instrument, and
acknowledged that this person executed the instrument as the voluntary act of the person.
_______________________________
Notary Public in and for the
State of Iowa
My Commission expires ________
STATE OF IOWA )
) SS
COUNTY OF __________ )
On this _____ day of __________________, 2019, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared ANDREA L CLEMMENSEN, to me
known to be the identical person named in and who executed the foregoing instrument, and
acknowledged that this person executed the instrument as the voluntary act of the person.
_______________________________
Notary Public in and for the
State of Iowa
My Commission expires ________
STATE OF IOWA )
) ss.
COUNTY OF DALLAS )
On this ____ day of _______________, 2019, before me, the undersigned, a Notary
Public in and for the State of Iowa, personally appeared William F. Peard and Rebecca D.
Schuett, to me personally known, and, who, being by me duly sworn, did say that they are the
Mayor and the City Clerk, respectively, of the City of Waukee, Iowa; that the seal affixed to the
foregoing instrument is the corporate seal of the corporation, and that the instrument was signed
and sealed on behalf of the corporation, by authority of its City Council, as contained in
Resolution No. _________ adopted by the City Council, under Roll Call of the City Council on
the ____ day of _______________, 2019, and that William F. Peard and Rebecca D. Schuett
acknowledged the execution of the instrument to be their voluntary act and deed and the
voluntary act and deed of the corporation, by it voluntarily executed.
______________________________
Notary Public in and for the
State of Iowa
My Commission expires ________
EXHIBIT A
EASEMENT AREA
A LANDSCAPE BUFFER EASEMENT LOCATED IN STONE PRAIRIE PLAT 1, AN OFFICIAL
PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
THE NORTH 25.00 FEET OF LOT 16 IN STONE PRAIRIE PLAT 1.
AN OVERLAND FLOWAGE EASEMENT LOCATED IN STONE PRAIRIE PLAT 1, AN OFFICIAL
PLAT IN THE CITY OF WAUKEE, DALLAS COUNTY, IOWA THAT IS MORE PARTICULARLY
DESCRIBED AS FOLLOWS:
THE SOUTHERLY 10.00 FEET OF THE NORTHERLY 30.00 FEET OF LOT 16 IN STONE PRAIRIE
PLAT 1.
EXHIBIT B
LOCATION OF FENCE
= Fence Location