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HomeMy WebLinkAbout2019-09-03-J02 Fence Agr_2310 SE Aster Ct AGENDA ITEM: CITY OF WAUKEE, IOWA CITY COUNCIL MEETING COMMUNICATION MEETING DATE: September 3, 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. Action was scheduled to be taken at the August 19th City Council Meeting, however, the applicant requested that the item be postponed until additional information could be provided from the applicant justifying the request. Staff has met with the property owner. The previous staff memo has been updated to reflect additional information provided by the property owner and additional supporting materials have been included. Please see attached updated memo regarding further information on the issue as well as staff’s recommendation. Mr. Clemmensen will be available at the meeting to provide additional information regarding his request as well as to answer any questions. FISCAL IMPACT INCLUDING COST/BENEFIT ANALYSIS: COMMISSION/BOARD/COMMITTEE COMMENT: STAFF REVIEW AND COMMENT: Based upon the analysis provided in the staff memo dated 8/29/19, staff would recommend that the proposed resolution not be approved. RECOMMENDATION: Deny the resolution. ATTACHMENTS: I. Proposed Resolution II. Staff memo dated 08/29/19 III. Support Materials from Drew Clemmensen PREPARED BY: Brad Deets, Development Services Director REVIEWED BY: J2 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 29, 2019 (Updated from previous memo) Re: Request for Modification of Landscape Buffer – 2310 SE Aster Court Attach: Lot Layout and Property Owner Justification 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 several years ago 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. While both neighboring properties were permitted for fences with the minimum 25 foot landscape buffer, it appears the property directly east of 2310 SE Aster Court was not built exactly to what was permitted in that a portion of the fence does bow out into the 25 foot landscape buffer. The other property is in conformance with the permit that was issued. 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. It has also been brought to staff’s attention that another property within the same subdivision but backing up to SE LA Grant Parkway also includes a fence that is partially within the landscape buffer easement. Upon review of the permit that was issued for that fence, again it appears that the fence was not constructed to how the fence was permitted. Resolution and enforcement of these two fences that M emo Waukee City Hall 230 Highway 6 Waukee IA 50263 Office: (515) 987-4522 Cell: (515) 250-7986 Facsimile: (515) 987-1845 were constructed within the landscape buffer easement will be dependent upon Council’s decision related to 2310 SE Aster Court. 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 chooses 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 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 neighboring properties to the east. Property Owner Justification: Mr. Clemmensen has provided reasoning and justification for his request to install the fence within the landscape buffer. Specifically, he feels that because of the shape of his lot and layout of the house, the 25 foot setback creates a peculiar circumstance when trying to M emo Waukee City Hall 230 Highway 6 Waukee IA 50263 Office: (515) 987-4522 Cell: (515) 250-7986 Facsimile: (515) 987-1845 place a fence as it does not run parallel to the back of the house and therefore at the northeast corner would come within 15 feet of his deck and landscaping. This creates an inconvenience for the use of the yard and he believes is aesthetically unappealing. Mr. Clemmensen has also indicated that unlike a lot of other yards that have an earthen berm which better defines the landscape buffer, his yard does not. Therefore, in his case more yard is available to maximize the yard space within a fenced in area. Mr. Clemmensen is also concerned about the amount of his yard that would have to be maintained outside of the fence and not as usable (18.5% at the 25 foot setback versus 8% at the 10 foot setback). Mr. Clemmensen has provided several pictures to better show the proposed location of the fence as well as other neighboring fences to justify his request. Recommendation: Staff certainly understands Mr. Clemmensen’s request and his desire to enclose as much of his rear yard as possible. Because the lot is within a cul de sac and due to the angle of the house layout, it is true that the northeast corner of the house does get relatively close to the landscape buffer setback. While other lots may have more uniform setbacks in relationship to the landscape buffer easements, it is staff’s opinion that there are several other similar lots throughout the City that have complied with the landscape buffer setback requirements. It continues to 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. 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. Mr. Clemmensen will be in attendance at the Council Meeting on September 3rd to provide additional information on his request and to address any questions that the City Council may have. 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 2 1 2 3 4