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In scrutiny assessments it is sometimes seen that huge demands are created against the assessee by framing high pitched assessments due to difference in opinion on interpretation of law or interpretation of facts or due to the fact that AO is not satisfied with the explanations offered by the assessee in regard to loan creditors or cash credits or gifts etc.
After the assessment a notice u/s 156 for recovery of tax demand created in concluded assessment proceedings, is issued. If a person fails to pay such tax demand then section 220 of Income Tax Act provides for treating such assessee as assessee-in-default as a result of which not only interest @ 1% u/s 220(2) on the tax demand is charged but penalty proceedings u/s 221 may also be initiated.
The assessee may file an appeal against such huge assessment and can also consequently apply for stay of such disputed tax demand since right to request for stay of demand in question is incidental to the right of appeal.
Petition for Stay of Demand: Section 220(6) provides that Where an assessee has presented an appeal under section 246 or section 246A the Assessing Officer may, in his discretion and subject to such conditions as he may think fit to impose in the circumstances of the case, treat the assessee as not being in default in respect of the amount in dispute in the appeal, even though the time for payment has expired, as long as such appeal remains undisposed off.
Thus assessee may apply for stay of tax demand u/s 220(6) and may request that he may not be treated as assessee in default. It should be noted here that accepting the request of an assessee u/s 220(6) is within the discretionary power of the AO. But such discretionary power cannot be exercised arbitrarily but has to be exercised judicialy and reasonably as the AO while exercising such discretionary power is always treated as quasi-judicial authority.
Time limit for deposit of tax demand u/s 156: Section 220(1) provides that demand raised u/s 156 shall be paid within 30 days from the date of service of notice, however such period may also reduced to less than 30 days with the prior approval of Joint Commissioner if AO has any reason to believe that allowing full pertiod of 30 days would be detrimental to the interests of revenue.
The assessee may also apply for extension of time before the due date for the payment of demand or he may also apply for payment of demand in installments.
The assessee will be treated as assessee in default only after the end of such period as mentioned in notice u/s 156. If the installments have been allowed and installment is not paid within time fixed for payment of installment then the assessee will be treated as assessee-in-default after the end of such period fixed.
-The petition should state the prima facie merits of the appeal. The test of merit of appeal lies mush upon the grounds of appeal, which should be strong enough.
-The hardship involved in the recovery of the disputed demand should be clearly and precisely stated. The petition should state why and how the balance of convenience is in favour of the stay, e.g. bad effect on the liquidity position of the business, jeopardy of the employment of workmen through possible closure of business and possibility dead lock in wage payment etc. as the case may be.
-Copy of grounds of appeal as well as statement of facts should accompany the petition to show the prima facie merits of the appeal.
-The petition should be submitted within 30 days of receipt of demand notice.
Discretionary power has to be exercised judicially: The discretion vested in the ITO u/s 220(6) is not merely a naked and arbitrary power but a power coupled with a responsibility and the concerned officer should take all the circumstances into account and all the considerations that could be urged or are urged by the assessee as to why he should not be treated as not being in default and then make such order as is appropriate to the facts of case. In other words, a request for the exercise of the power u/s 220(6) cannot be merely summarily rejected on the basis that the power is there with the officer but that he is not bound to exercise it- M.L.M Mahalingam Chettiar v. Third ITO  66 ITR 287 (Mad.).
AO should give reasons for dismissing an application for stay: The AO cannot simply reject the stay application without giving any reason for the same., AO must pass a speaking order while dismissing stay application.
As the exercise of discretion by AO u/s 220(6) is quasi-judicial function and he has to exercise his power fairly and reasonably and not arbitrarily or capriciously, the AO should give reasons for dismissing an application made by an assessee for involving his discretion and should also hear the assessee- Cf. Seth Gopaldas Paliwal v. WTO  139 ITR 900 (MP). Teletube Electronics Ltd. V CIT  230 ITR 705, 707 (Del.); Chesebrough Pond’s Inc v A.A.C. (C.T.),  32 STC 464 (Mad.).
Assessee cannot be treated in default until stay application is disposed off: It should be noted also that until application for stay of demand is disposed off by a speaking order assessee cannot be considered as assessee in default. Moreover demand remains stayed until the disposal of the application for stay. “Where an application for stay of demand in pending for disposal u/s 220(6), the demand should be stayed until the application is considered and an order is passed”-Sat Pal v ITAT 317 (P&H); Bongaigaon Refinery and Petro Chemicals Ltd. V. CIT 256 ITR 698 (Gau.); Debasish Moulik v. DCIT 231 ITR 737 (Cal.).
Stay should be granted if grounds of appeal are not frivolous: Normally, once the officer is satisfied that an appeal has been filed (and the grounds are not frivolous), he has to treat the assessee as not in default to the extent of the portion of tax disputed in the appeal. Though section 220(6) doesnot indicate in what cases denial of discretion shall be justified, the fact that the assessee is financially sound and is in a position to pay is not in itself a ground for refusing to exercise the discretion in granting the stay- R.P. David v. Ag. ITO  86 ITR 699 (Mad.).
Penalty u/s 221 cannot be imposed before disposing off of the stay petition: As noted earlier till the time stay application is disposed off by the AO, the demand remains stayed and hence assessee is not considered in default. Thus until the time stay application is being disposed off, no penalty u/s 221 can be imposed for non-payment of demand because assessee will not be considered as assessee in default till the disposing off of stay application.
In CIT v. DLF Universal Ltd.  297 ITR 342 (Del.), the Delhi High Court held that Assessing Officer should have decided the stay applications filed by the assessee before levy of penalty u/s 221. In this case High Court held that the assessing officer should have decided the stay applications filed by the assessee before taking any steps prejudicial to the interests of the assessee.
“Stay in cases of harsh assessment: - One of the points that came up for consideration at the 8th meeting of the informal consultative committee was that income-tax assessments were arbitrarily pitched at high figures and that the collection of disputed demands, as a result of these, was also not stayed inspite of the specific provision in the matter in section 220(6) of the IT Act, 1961.
(a) The demand in dispute has arisen because the AO has adopted an interpretation of law on which there are conflicting decisions from the High Courts or the jurisdictional High Court has adopted an interpretation, which has not been accepted by the I-T department.
(b) The demand in dispute relates to issues that have been decided in favour of the assessee in the past.
In respect of cases, which are not covered by (a) and (b), the AO has been advised to take into account all the relevant factors and communicate his decision to the assessee by a speaking order. It was said in this circular that while exercising discretion under this provision, the financial capacity of the assessee to pay the demand would not be relevant.
Circular No.589 was also issued afterwards clarifying contents of circular No 530.
Many queries have been received regarding the applicability of Instruction number 95 dated 21.8.1969 vis-à-vis Instruction number 1914 dated 2.12.1993. Many assesses are taking the plea that Instruction No. 1914 does not supercede Instruction No. 95 dated 21.8.1969.
The above observations were circulated to the field officers by the Board as Instruction number 95 dated 21.8.1969.
(i)Clarification to Instruction number 95 was issued on 14/09/1970 stating that it relates to disputed demands only.
(ii) Instruction number 635 was issued on 12/11/1973 stating that stay should be granted only in those cases where demands are attributable to substantial points of dispute.
(iii)Clarification to Instruction number 95 dated 13/07/1976 held that the Instruction becomes operative only in cases where there are no lapses on the part of the assessee.
(iv)Instruction number 1067 dated 21/06/1977 held that the ITO can pass the necessary orders u/s 220 (6) in all cases except cases under section 144A or 144B where the approval of IAC is required.
(v) Instruction number 1158 dated 27th March 1978 held that in suitable cases the assessee may be allowed to furnish security.
(vi) Instruction number 1282 dated 4th October 1979 held that requests should be made to CIT(A) and ITAT for early disposal of appeals and constant watch should be kept on progress of appeals.
In exercising this discretion, the Income-tax Officer should take into account factors such as: whether the points in dispute relate to facts; whether they arise from different interpretations of law; whether the additions have been made as a result of detailed investigation; whether the additions are based on materials gathered through enquiry/survey/search and seizure operations; whether the disputed addition to income has been assessed elsewhere by way of protective assessment and the tax thereon has been paid by such person etc. The magnitude of addition to income returned cannot be the sole determinant in this regard. Each disputed addition will need to be considered to arrive at the quantum of tax that may need to be stayed.
3. It is clear that the substance of the assurance as laid down in Instruction number 95 dated 21.8.1969 was submerged in the Instruction number 1362 dated 15/10/1980 which was issued in supersession of all earlier Instructions on the subject. Instruction No. 1914 dated 2.12.1993 was issued subsequently in super-session of all the earlier Instructions on the subject and the said Instruction also covers unreasonably high pitched assessment order and genuine hardship cases.
4. It is therefore clarified that there is no separate existence of the Instruction number 95 dated 21.8.1969. Instruction number 95 and all subsequent Instructions on the issue ceased to exist from the date Instruction No. 1362 came into operation. In turn Instruction number 1362 and all subsequent Instructions on the issue also ceased to exist the day Instruction number 1914 came into operation i.e. 2/12/1993.The Instruction number 1914 holds the field currently and a copy of Instruction number 1914 is enclosed for reference.
The Board has felt the need for a comprehensive instruction on the subject of recovery of tax demand in order to streamline recovery procedures. This instruction is accordingly being issued in supersession of all earlier instructions on the subject and reiterates the existing Circulars on the subject.
i. It shall be the responsibility of the Assessing Officer and the TRO to collect every demand that has been raised, except the following : (a) Demand which has not fallen due;(b) Demand which has been stayed by a Court or ITAT or Settlement Commission;(c) Demand for which a proper proposal for write-off has been submitted;(d) Demand stayed in accordance with paras B & C below.
ii. Where demand in respect of which a recovery certificate has been issued or a statement has been drawn, the primary responsibility for the collection of tax shall rest with the TRO.
iii. It would be the responsibility of the supervisory authorities to ensure that the Assessing Officers and the TROs take all such measures as are necessary to collect the demand. It must be understood that mere issue of a show cause notice with no follow-up is not to be regarded as adequate effort to recover taxes.
i. Stay petitions filed with the Assessing Officers must be disposed of within two weeks of the filing of petition by the tax- payer. The assessee must be intimated of the decision without delay.
ii. Where stay petitions are made to the authorities higher than the Assessing Officer (DC/CIT/ CC), it is the responsibility of the higher authorities to dispose of the petitions without any delay, and in any event within two weeks of the receipt of the petition. Such a decision should be communicated to the assessee and the Assessing Officer immediately.
iii. The decision in the matter of stay of demand should normally be taken by Assessing Officer/ TRO and his immediate superior. A higher superior authority should interfere with the decision of the AO/TRO only in exceptional circumstances; e.g., where the assessment order appears to be unreasonably high-pitched or where genuine hardship is likely to be caused to the assessee. The higher authorities should discourage the assessee from filing review petitions before them as a matter of routine or in a frivolous manner to gain time for withholding payment of taxes.
It is clarified that in these situations also, stay may be granted only in respect of the amount attributable to such disputed points. Further where it is subsequently found that the assessee has not co-operated in the early disposal of appeal or where a subsequent pronouncement by a higher appellate authority or court alters the above situation, the stay order may be reviewed and modified. The above illustrations are, of course, not exhaustive.
c. require an undertaking from the assessee that he will co-operate in the early disposal of appeal failing which the stay order will be cancelled.
e. reserve a right to adjust refunds arising, if any, against the demand.
iii. Payment by installments may be liberally allowed so as to collect the entire demand within a reasonable period not exceeding 18 months.
iv. Since the phrase “stay of demand” does not occur in section 220(6) of the Income-tax Act, the Assessing Officer should always use in any order passed under section 220(6) [or under section 220(3) or section 220(7)], the expression that occurs in the section viz., that he agrees to treat the assessee as not being default in respect of the amount specified, subject to such conditions as he deems fit to impose.
v. While considering an application under section 220(6), the Assessing Officer should consider all relevant factors having a bearing on the demand raised and communicate his decision in the form of a speaking order.
i. Even where recovery of demand has been stayed, the Assessing Officer will continue to review the situation to ensure that the conditions imposed are fulfilled by the assessee failing which the stay order would need to be withdrawn.
ii. Where the assessee seeks stay of demand from the Tribunal, it should be strongly opposed. If the assessee presses his application, the CIT should direct the departmental representative to request that the appeal be posted within a month so that Tribunal’s order on the appeal can be known within two months.
iii. Appeal effects will have to be given within 2 weeks from the receipt of the appellate order. Similarly, rectification application should be decided within 2 weeks of the receipt t hereof. Instances where there is undue delay in giving effect to appellate orders, or in deciding rectification applications, should be dealt with very strictly by the CCITs/CITs.
4. This procedure would apply mutatis mutandis to demands created under other Direct Taxes enactments also.
Conclusion: It should be kept in mind that there is no default deemed to have occoured until disposal of stay petition therefore no penalty is imposable without disposal of stay petition. Demand remains automatically stayed during the period stay application is pending before AO.
Summary rejection of stay petition by non-speaking order is invalid.The refusal may be challenged in application u/s 264 before C.I.T.The refusal by CIT, if unreasonable and inconsiderable, is open to challenge in writ petition.
Stay petitions u/s 220(6) should not be dealt with in mechanical manner but the discretionary power to grant stay should be exercised judicialy and reasonably and a speaking order should be passed while disposing off the stay petitions.

matches: v. v. V. v. v. v. v.


The purpose of this Ordinance is to provide minimum standards for the design, development and improvements for all new subdivisions and re-subdivisions of land; to protect existing land uses; to provide for the regulation and control of the extension of public improvements, public services, and utilities; to insure that growth occurs in an orderly manner, consistent with the City’s Comprehensive Plan as amended; and to promote the public health, safety and general welfare of the citizens of Maquoketa, Iowa; all as authorized by Iowa Code Chapter 354, including the purposes set forth in said Chapter.
This Ordinance shall apply to all subdivisions or re-subdivisions which occur on or after the date of publication of this Ordinance. Any subdivisions or re-subdivisions which occur prior to that date are governed by the previous “Subdivision Regulations” of the City of Maquoketa, Iowa.
1. Any proposed subdivision or re-subdivision of land as defined in this Ordinance, lying within the city limits of the City of Maquoketa or lying within two (2) miles of the city limits of the City of Maquoketa, shall be subject to the provisions of this Ordinance. No proposed subdivision plats, whether preliminary or final, shall be recorded as provided in Iowa Code Chapter 354 until all provisions of Iowa Code Chapters 354 and 355 as amended, and this Ordinance, have been complied with.
2. No officer, agent or employee of the City shall take any action to issue any building permit or permit for any water or sewer connection for any building or structure constructed or proposed to be constructed on land subdivided contrary to the provisions of this Ordinance. No officer, agent or employee of the City shall perform or cause to be performed any construction or maintenance upon any area purporting to be a street or public right of way by virtue of being shown on a subdivision plat, and no public funds shall be spent for such improvements, until such plat shall have been approved and recorded as required by this Ordinance.
3. When a preliminary subdivision plat or a final subdivision plat is submitted to the planning and zoning commission or city council for approval, and the plat is not approved by the planning and zoning commission or city council, the resolution of disapproval shall state how the subdivision plat is objectionable. The planning and zoning commission and city council shall consider the factors contained in this Ordinance, the City’s Comprehensive Plan, and the factors set forth in Iowa Code §354.8 in considering a subdivision plat for approval. The planning and zoning commission or city council shall approve or disapprove a subdivision plat within sixty (60) days from the date of application for approval of the plat. The city council shall not issue final approval of a subdivision plat unless the subdivision plat conforms to Iowa Code §§354.6, 354.11, and 355.8. The applicant for approval shall have the right to appeal set forth in Iowa Code §354.10.
4. If a proposed subdivision lies outside the city limits of the City of Maquoketa but within two (2) miles of said city limits, the developer shall comply in all respects with this ordinance. All required documents shall be submitted to both the City of Maquoketa and either Jackson County or Clinton County as appropriate for approval. The City shall apply the standards of this Ordinance and Iowa Code Chapters 354 and 355 to such plats.
5. The City may enter into a Iowa Code Chapter 28E agreement with Jackson County or Clinton County to establish mutual standards and conditions for review of subdivision plats or plats of survey for division or subdivision in areas of overlapping jurisdiction. In the event such a 28E agreement is adopted, the city shall apply the standards and procedures set forth in the 28E agreement to such plats rather than the provisions of this Ordinance.
6. The city council may waive the right to review a subdivision or waive city standards or conditions for approval of subdivision plats. Such waiver shall be by resolution, which shall be certified and recorded with the subdivision plat. The city council may not waive any requirements for subdivision plats contained in §§354.6, 354.11, and 355.8.
7. The city council shall not issue final approval of a subdivision plat unless the subdivision plat conforms with Iowa Code Chapters 354 and 355 as those Chapters may from time to time be amended.
8. If the subdivision plat and all matters related to final approval conform to the standards and conditions established by this Ordinance and Iowa Code Chapters 354 and 355, the city council shall approve the plat by resolution, which shall be certified and recorded with the plat.
1.	“Aliquot part” means a fractional part of a section within the United States public land survey system. Only the fractional parts one-half, one-quarter, one-half of one-quarter, or one-quarter of one-quarter shall be considered an aliquot part of a section.
2.	“Alley” means a minor way, dedicated to public use, which is based primarily for vehicular access to the back or the side of properties which otherwise abut a public street.
3.	“Auditor’s plat” means a subdivision plat required by either the auditor or the assessor, prepared by a surveyor under the direction of the auditor.
4.	“Block” means the smallest piece or parcel of land entirely surrounded by public highways, streets, streams, parks, or a combination thereof.
5.	“Building” means any structure designed, built, or intended for the shelter, enclosure or protection of persons, personal property, vehicles, or animals.
6.	“Building Setback Line” means a line within a lot or parcel of land designated on the plat of the proposed subdivision, between which line and the adjacent boundary of the street upon which the lot abuts, the erection of a building is prohibited.
7.	“City” means the City of Maquoketa, Iowa.
8.	“City Attorney” means the city attorney of the City of Maquoketa, Iowa.
9.	“City Council” means the city council of the City of Maquoketa, Iowa.
10.	“City Engineer” means a registered professional engineer authorized by the City to review engineering date outlined in these subdivision regulations.
11.	“City Manager” means the city manager of the City of Maquoketa, Iowa, or his designated representative.
12.	“Comprehensive Plan” means the plan or series of plans made for the future development of an area within the City of Maquoketa or within two (2) miles of the city limits of the City of Maquoketa.
13.	“Conditional Approval” means the approval given to the layout of streets and lots in a subdivision set forth in a preliminary plat which forms the basis for preparation of the final plat.
14.	“Conveyance” means an instrument filed with a recorder as evidence of the transfer of title to land, including any form of deed or contract.
15.	“Cul-De-Sac” means a minor street having one end open to traffic and being permanently terminated by a vehicular turnaround.
16.	“Developer” means the owner or agent under legal authority of the owner who undertakes to cause a parcel of land to be designed, constructed and recorded as a subdivision.
17.	“Division” means dividing a tract or parcel of land into two parcels of land by conveyance or for tax purposes. The conveyance of an easement, other than a public highway easement, shall not be considered a division for the purpose of this Ordinance.
18.	“Easement” means a grant by the property owner to the public, persons, or a corporation or association, of the use of a parcel of land for a specific purpose.
19.	“Final Plat” means a subdivision plat with the attachments required by Iowa Code §354.11, submitted for approval by the planning and zoning commission and city council.
20.	“Flood Hazard Area” means any area subject to flooding by a one percent (1%) probability flood, otherwise referred to as a one hundred (100) year flood, as designated by the Iowa Department of Natural Resources or the Federal Emergency Management Agency.
21.	“Floodway” means the channel of a river or other watercourse and the adjacent lands that must be reserved in order to discharge the waters of a one hundred (100) year flood without cumulatively raising the waterway surface elevation more than one (1) foot.
22.	“Forty-acre aliquot part” means one-quarter of one-quarter of a section.
23.	“Frontage” means all the property on one side of a street between two intersecting streets (crossing or terminating) measured along the line of the street, or if the street is dead ended, then all of the property abutting one side between an intersecting street and the dead end of the street.
24.	“Government lot” means a tract, within a section, which is normally described by a lot number as represented and identified on the township plat of the United States public land survey system.
25.	“Grading Plan” means a drawing of a proposed subdivision on a contour or topographic map showing existing and proposed contours at a contour interval of not more than five (5) feet and a scale of not less than one hundred (100) feet to the inch.
26.	“Half Street” means a street having a width less than required by these subdivision regulations.
27.	“Highway” means a right of way for vehicular traffic which traverses a nonurban area and is usually a state or federal numbered route.
28.	“Improvements” mean changes and additions to land necessary to prepare it for building sites; including, but not limited to, street surfacing, curb and gutter, grading, monuments, drainage ways, sanitary sewers, storm sewers, fire hydrants, water mains, sidewalks, pedestrian ways, recreational trails, and other public and private works and appurtenances.
29.	“Individual Subsurface Sewage Treatment Facility” means a sewage disposal system designed to function on an individual lot basis.
30.	“Iowa Code” means the Code of Iowa as from time to time amended.
31.	“Land Remnant” means any portion of a tract of land which cannot be developed after the tract has been subdivided.
32.	“Lot” means a tract of land represented and identified by number or letter designation on an official plat.
33.	“Maintenance Guarantee” means a surety bond, cash deposit, irrevocable letter of credit, escrow account or certificate of deposit, pledged to the City of Maquoketa in an amount so as to insure that for a period of two (2) years from acceptance date, the developer shall be responsible to maintain improvements dedicated to the public in good repair.
34.	“Metes and bounds description” means a description of land that uses distances and angles, uses distances and bearings, or describes the boundaries of the parcel by reference to physical features of the land.
35.	“Official plat” means either an auditor’s plat or a subdivision plat that meets the requirements of this Ordinance and Iowa law, and has been filed for record in the offices of the recorder, auditor, and assessor.
36.	“Parcel” means a part of a tract of land.
37.	“Performance Guarantee” means a surety bond, cash deposit, irrevocable letter of credit, escrow account or certificate of deposit, pledged to the City of Maquoketa in an amount equal to the full cost of the improvements which are required by this Ordinance; said cost to be estimated by the City, and said amount being legally sufficient to secure to the City that the said improvements will be constructed in accordance with the requirements of this Ordinance.
38.	“Person” means an individual, partnership or other legal entity.
40.	“Plat of Survey” means the graphical representation of a survey of one or more parcels of land, including a complete and accurate description of each parcel within the plat, prepared by a registered land surveyor.
41.	“Preliminary Plat” means a plat submitted to the planning and zoning commission for review in accordance with the provisions of this Ordinance.
42.	“Proprietor” means a person who has a recorded interest in land, including a person selling or buying land pursuant to a contract, but excluding persons holding a mortgage, easement, or lien interest.
j.	Traffic-control devices, fixtures, connections and facilities.
44.	“Re-plat” or “Re-subdivision” means a subdivision of land which has been previously platted or subdivided into lots or parcels of land. It may include all or any part of a previous subdivision or plat.
45.	“Reserve Strip” means a narrow parcel of land between a street adjacent to the property line and the adjacent property, the strip being retained in private ownership to prevent access of neighboring property to an improved and dedicated street.
46.	“Sketch Plan” means a sketch to designate the scale of a proposed layout or alternate layout of lots, blocks and public ways, for the purpose of facilitating discussions and review between a developer and city officials prior to the filing of a preliminary plat.
47.	“Street” means property, dedicated to the public, not an alley, intended for vehicular traffic. It may provide for vehicular and pedestrian access to properties adjacent to it, and may also provide space for the location of utilities, either above or below ground.
48.	“Street Pavement Width” means the horizontal distance of the roadway measured from back-of-curb to back-of-curb.
50.	“Subdivision Plat” means the graphical representation of the subdivision of land, prepared by a registered land surveyor, having a number or letter designation for each lot within the plat and a succinct name or title that is unique for the county where the land is located.
51.	“Surveyor” means a registered land surveyor who engages in the practice of land surveying pursuant to Iowa Code Chapter 542B.
52.	“Tract” means an aliquot part of a section, a lot within an official plat, or a government lot.
53.	“Utilities” means the systems for the distribution or collection of water, gas, wastewater, stormwater, electricity, and telephone and cable television service.
A subdivision shall be classified as a simple, minor or major subdivision as set forth in this ordinance.
1. Simple subdivision. Any subdivision in which no new streets, public or private, are proposed, which does not require the construction of any public improvements, where no floodplains or wetlands exist, and which contains fewer than three (3) lots, shall be classified as a “simple subdivision”.
2. Minor subdivision. Any subdivision in which no new streets, public or private, are proposed, which does not require the construction of any public improvements, where no floodplains or wetlands exist, and which contains three (3) or more lots, shall be classified as a “minor subdivision”.
3. Major subdivision. Any subdivision which is not a simple subdivision or a minor subdivision shall be classified as a “major subdivision”.
5-3-7	STAFF REVIEW OF SIMPLE SUBDIVISIONS.
Simple subdivisions shall be reviewed by the city manager, city engineer and city attorney to determine compliance with the Subdivision Ordinance of the City of Maquoketa, Iowa, and Iowa law. Review by the planning and zoning commission shall not be required. The city manager may set conditions to provide that the division meets the requirements of all applicable city codes. A simple subdivision plat shall be a Plat of Survey and no Final Plat shall be required. Plat attachments are not required for a simple subdivision. No plat of a simple subdivision shall be recorded unless the city manager has approved the plat.
1. A planning conference is mandatory for a major subdivision. A planning conference for a minor subdivision or a simple subdivision shall only be held if requested by the city, the developer or the developer’s engineer.
2. The planning conference shall be informal and shall be for the purpose of determining the general requirements to be included in the subdivision. Participants may include the developer, his engineer, his surveyor, the city manager, the city engineer, and any other city official deemed by the city manager to have input or an interest in the layout or facilities to be furnished in the subdivision. Any of the above participants may designate a representative to confer on their behalf.
3. The time and place of the planning conference shall be set by the city manager and all parties shall be notified.
4. The developer shall furnish a sketch plan of the proposed subdivision to the city manager at least five (5) days prior to the planning conference.
5. The proceedings of the planning conference shall be informal. During the conference the city manager shall strive to assist the developer in the subdivision process. Any tentative agreements reached between the city and the developer during the planning conference shall be subject to ratification by the planning and zoning commission or city council as appropriate.
5-3-9	PRELIMINARY PLAT – FILING – CONTENT.
1. The developer shall file a preliminary plat for any major subdivision. The city manager, in his discretion, may require the filing of a preliminary plat for a minor subdivision. No preliminary plat shall be required for a simple subdivision.
a. The subdivision name, scale, north arrow and date.
b. The name and address of the proprietor and developer, and the name and address of the person or firm preparing the preliminary plat.
c. A key map showing the general location of the subdivision in relation to surrounding streets and development.
d. All adjacent streets and subdivisions and the names of all the owners of record of all adjacent property.
e. The legal description of the property included in the proposed subdivision.
f. The approximate total area of the proposed subdivision and the approximate total area proposed for streets, highways or alleys.
g. The zoning of the proposed subdivision and adjoining properties.
h. The layout, numbers, approximate dimensions and area of proposed lots.
i. The layout, numbers or letters, and proposed dimensions of any land remnant included within the subdivision.
j. The existing and proposed topography of the subdivision showing contours at appropriate vertical intervals not exceeding four (4) vertical feet.
k. The location of all existing easements, buildings, watercourses, tree masses and other features located within one hundred (100) feet of the subdivision, including floodways and flood hazard areas.
l. The location, width, dimensions, approximate grades and proposed names of all public streets proposed to be dedicated for public use and of all private streets proposed to be provided for by perpetual easement.
m. The location of present and proposed utility systems and other facilities located within one hundred (100) feet of the plat.
n. Proposed perpetual easements, showing locations, widths and purposes.
o. Parcels of land proposed to be dedicated or reserved for schools, parks, playgrounds, or public or sem-public purposes.
p. A preliminary grading and erosion control plan.
q. All front building setback lines and side building setback lines on intersecting street sides of corner lots.
r. Typical cross-sections of the proposed streets showing roadway location, type of curb and gutter, base and surface course materials to be used and sidewalks to be installed.
s. Construction plans for all public improvements to be constructed by the developer.
t. A complete listing of all existing covenants which apply to the land to be subdivided.
u. Any other pertinent information as determined by the city manager.
1. Developer shall file ten (10) copies of the preliminary plat with the city manager and shall pay the required preliminary plat review fee as established by ordinance.
2. The preliminary plat shall be filed with the city manager at least thirty (30) days prior to the next scheduled regular meeting of the planning and zoning commission.
3. Two (2) copies of the preliminary plat shall be provided to the city engineer for review, who shall report in writing to the city manager within ten (10) days with his or her comments. One (1) copy of the preliminary plat shall be provided to the city attorney for review, who shall report in writing to the city manager within ten (10) days with his or her comments.
4. The city manager shall prepare a report for the planning and zoning commission at least ten (10) days prior to the meeting at which the preliminary plat will be considered.
5. The planning and zoning commission shall hold a public meeting to consider and study the preliminary plat. The planning and zoning commission shall determine if it complies with the requirements of this ordinance. The commission shall receive and review the reports of the city manager, city engineer and city attorney. The commission shall consider the city’s comprehensive plan, the city’s applicable standards and ordinances, and the possible burden on public improvements. The commission shall balance the interests of the proprietor, future purchasers, and the public interest in the subdivision when reviewing the proposed subdivision and when requiring the installation of public improvements in conjunction with approval of the subdivision. The commission may table the preliminary plat if necessary to obtain additional information from the developer or city staff.
6. The planning and zoning commission shall, within sixty (60) days of the filing of the preliminary plat with the city manager and payment of all required fees, either approve or disapprove the preliminary plat. The commission may, as a requirement of approving the preliminary plat, impose requirements for approval. The commission’s approval or disapproval shall be in writing and shall be delivered to the city manager, city engineer, city attorney and developer. The commission’s approval of the preliminary plat shall be a conditional approval.
7. No city council review of a preliminary plat is required.
8. The approval of a preliminary plat by the commission shall remain in effect for a period of one year, unless extended by the city council as provided in section 5-3-12(1). If the developer does not file a final plat within that time, all previous actions by the city regarding the preliminary plat are null and void.
9. The planning and zoning commission’s approval of the preliminary plat shall not constitute authority to sell lots, record the plat, advertise the future or conditional sale of lots based upon the preliminary plat, nor authority to construct permanent buildings, structures or improvements in reliance upon the layout contained in the preliminary plat.
10. If the developer makes substantial alterations to the layout of the subdivision after the conditional approval of the preliminary plat, such alterations shall be subject to review and approval by the commission.
5-3-11 COMMERCIAL OR INDUSTRIAL SUBDIVISIONS.
1. The street and lot layout of a subdivision for commercial or industrial purposes shall be appropriate to the land use for which the subdivision is proposed. The plat shall conform to the city’s comprehensive plan, zoning ordinance, and all other ordinances and regulations of the city.
a. Proposed commercial or industrial parcels shall be suitable in area and dimensions to the type of development anticipated.
b. Street right-of-way and surface shall be adequate to accommodate the type and volume of traffic anticipated to be carried thereon.
c. Special requirements may be imposed by the city with respect to the installation of utilities.
d. Special requirements may be imposed by the city with respect to street, curb and gutter, and sidewalk design and construction.
e. The developer shall be required to protect adjacent residential areas from potential nuisances from the proposed commercial or industrial development, including, but not limited to, setbacks or buffer strips, barriers, or landscaping.
f. Streets designed to carry nonresidential traffic, such as truck traffic, shall not be extended to the boundaries of adjacent existing or potential residential areas, or connected to streets intended for predominantly residential traffic.
g. Adequate access shall be provided to all lots and adequate provisions for off-street parking and deliveries shall be provided.
h. Developers of commercial or industrial subdivisions shall conform and comply with all requirements of this Ordinance.
5-3-12 FINAL PLAT – FILING – CONTENT AND ATTACHMENTS.
1. The developer shall file a final plat with the city manager within one (1) year of the planning and zoning commission’s approval of the preliminary plat. In the event the developer does not file a final plat within one (1) year of approval of the preliminary plat, the planning and zoning commission’s approval of the preliminary plat is void and of no effect. The city council may extend the deadline to file a final plat for one additional year if the developer applies in writing for an extension within the original one year period. The city manager, in his discretion, may require the developer to file a revised preliminary plat prior to submission of a final plat.
2. Plats of survey shall contain the information and be submitted in the form required by Iowa Code §355.7.
a. A statement by the proprietors and their spouses, if any, that the plat is prepared with their free consent and in accordance with their desire, signed and acknowledged before an officer authorized to take the acknowledgment of deeds. The statement by the proprietors may also include a dedication to the public of all lands within the plat that are designated for streets, alleys, parks, open areas, school property, or other public use, if the dedication is approved by the governing body.
b. A statement from the mortgage holders or lienholders, if any, that the plat is prepared with their free consent and in accordance with their desire, signed and acknowledged before an officer authorized to take the acknowledgment of deeds. An affidavit and bond as provided for in Iowa Code §354.12, may be recorded in lieu of the consent of the mortgage or lienholder. When a mortgage or lienholder consents to the subdivision, a release of mortgage or lien shall be recorded for any areas conveyed to the governing body or dedicated to the public.
c. An opinion by an attorney-at-law who has examined the abstract of title of the land being platted. The opinion shall state the names of the proprietors and holders of mortgages, liens, or other encumbrances on the land being platted and shall note the encumbrances, along with any bonds securing the encumbrances. Utility easements shall not be construed to be encumbrances for the purpose of this section.
d. A certified resolution by the planning and zoning commission and city council either approving the subdivision or waiving the right to review.
e. A certificate of the county treasurer that the land is free from certified taxes and certified special assessments or that the land is free from certified taxes and that the certified special assessments are secured by bond in compliance with Iowa Code §354.12.
f. A complete set of restrictive covenants proposed for the subdivision.
A subdivision plat which includes no land set apart for streets, alleys, parks, open areas, school property, or public use other than utility easements, shall be accompanied by the documents listed in subsections a, b, c, and d, and a certificate of the treasurer that the land is free from certified taxes other than certified special assessments.
4. Ten (10) copies of the final plat, together with all required attachments, shall be submitted to the city manager together with any final plat review fee as established by ordinance. In addition, by the act of filing the final plat, the developer agrees to pay to city within thirty (30) days of billing, all legal and engineering charges the city incurs for the review of the proposed final plat, attachments, final improvement plans and specifications, and observations during the construction of the improvements.
5. The final plat shall be filed with the city manager at least thirty (30) days prior to the next scheduled regular meeting of the planning and zoning commission.
1. Two (2) copies of the final plat and attachments shall be provided to the city engineer for review, who shall report in writing to the city manager within ten (10) days with his or her comments. One (1) copy of the final plat with attachments shall be provided to the city attorney for review, who shall report in writing to the city manager within ten (10) days with his or her comments.
2. The city manager shall prepare a report for the planning and zoning commission at least ten (10) days prior to the meeting at which the final plat will be considered.
3. The planning and zoning commission shall hold a public meeting to consider and study the final plat. The planning and zoning commission shall determine if it complies with the requirements of this ordinance. The commission shall receive and review the reports of the city manager, city engineer and city attorney. The commission shall consider the city’s comprehensive plan, the city’s applicable standards and ordinances, and the possible burden on public improvements. The commission shall balance the interests of the proprietor, future purchasers, and the public interest in the subdivision when reviewing the proposed subdivision and when requiring the installation of public improvements in conjunction with approval of the subdivision. The commission may table the final plat if necessary to obtain additional information from the developer or city staff.
4. The planning and zoning commission shall, within thirty (30) days of the filing of the final plat with the city manager and payment of all required fees, either approve or disapprove the final plat by resolution. The commission may, as a requirement of approving the final plat, impose requirements for approval. The commission’s resolution shall be delivered to the city manager, city engineer, city attorney and developer.
5. The city council shall consider the final plat and the resolution of the planning and zoning commission within thirty (30) days of the resolution of the planning and zoning commission. If the city council finds that the plat has been prepared in compliance with the regulations of this Ordinance, Iowa Code Chapters 354 and 355, and in substantial compliance with the preliminary plat, where required, such final plat shall be approved by resolution. In the event the final plat is not approved, the minutes shall set forth the reasons for the denial, including how the final plat varies from this Ordinance, Iowa Code Chapters 354 and 355, or the preliminary plat.
6. One certified copy of the resolution of the planning and zoning commission and one certified copy of the resolution of the city council shall be provided to the developer. The developer shall file the final plat and all required attachments with the recorder as required by Iowa Code §354.18. The final plat shall be recorded within sixty (60) days of approval by the city council.
b. Provision for a maintenance guarantee for a period of two (2) years after final acceptance of the improvement.
2. The time allowed for installation of the improvements for which the performance guarantee has been provided may be extended by the city council by resolution.
3. Upon completion of all required improvements, the developer shall notify the city manager, in writing, of the completion of the improvements. The city engineer shall inspect all improvements of which such notice has been given and shall file a report, in writing, with the city manager and developer, indicating either approval or rejection of such improvements with a statement of reasons for any rejection.
a. The developer’s completion of all required improvements and the notification to the city manager in writing required above.
b. Submission to the city manager evidence of payment in full for all work performed on the public improvements.
c. Submission of “As Built Drawings” prepared by the registered professional engineer who prepared the improvement plans, and a statement from the engineer that all construction has been completed in accordance with the engineering plans and specifications approved by the city and the requirements of all ordinances and regulations of the city.
d. A maintenance guarantee as required by this section of the Ordinance.
e. The city engineer’s report that the subdivision improvements have constructed in accordance with the approved final plat and the regulations of the city.
f. Developer’s payment to city of all fees and charges for plat review, legal review, and engineering review and services.
d. Certificate of deposit. The developer may deposit a certificate of deposit in the name of the City of Maquoketa with a financial institution acceptable to the city.
1. Public improvements, including streets, sanitary sewers, storm sewers, water mains, street lighting, street trees, and sidewalks shall be installed in accordance with the city standards.
2. Utilities shall generally be located within the right-of-way on both sides of and parallel to the street, in accordance with the city standards.
3. All developers shall provide a plan to connect the development to the public water supply system, public storm sewer system and public sanitary sewer system where required by city ordinance or the city standards.
4. Preliminary and final grading and erosion control plans shall comply with city ordinances and the city standards.
1. The design of the subdivision shall be in conformance with the comprehensive plan, zoning ordinance and city standards.
2. To the maximum extent practicable, the subdivision shall be designed to preserve the natural features of the site, to avoid areas of environmental sensitivity, and to minimize the negative impacts and alteration of the natural features.
3. The subdivision shall be laid out to avoid adversely affecting groundwater and aquifer recharge; to reduce cut and fill; to avoid unnecessary impervious cover; to prevent flooding; to provide adequate access to lots and sites; and to mitigate adverse effects of shadow, noise, odor, traffic, drainage, and utilities on neighboring properties.
4. The subdivision shall be laid out to create lots which provide sufficient area for development outside utility easements. No buildings, fill, or grading shall occur within the utility easements without approval of the city.
1. All blocks and lots shall be numbered systematically for identification.
2. The minimum area and dimensions for lots shall conform to the applicable requirements of the area regulations of the zoning ordinance. All lots shall front on a public street or an approved private street as permitted in the zoning ordinance. Lots with double frontages shall not be permitted unless one frontage is an arterial street without access rights. Triangular lots shall be avoided whenever possible.
3. In so far as practical, the side lot lines shall be perpendicular to the street on which the lot fronts.
4. In cases where irregularity of ownership or street lines would produce remnant lots less than the minimum area required by the zoning ordinance, such area shall be added to adjoining lots.
1. The arrangement of arterial and collector streets shall conform to the comprehensive plan. For streets not shown in the comprehensive plan, the arrangement shall provide for the appropriate extension of existing streets.
a. The right-of-way shall be measured from lot line to lot line and shall be sufficiently wide to contain the street pavement, curbs, shoulders, sidewalks, utilities, street lighting and street trees placed within the right-of-way.
b. The right-of-way width of a new street that is a continuation of an existing street shall in no case be continued at a width less than that of the existing street. The right-of-way width shall vary with street classification according to the city standards.
c. Dedication of half-streets (right-of-way) is discouraged but may be approved by the planning and zoning commission and city council to serve the public interest. Lots abutting on such right-of-way shall be nonbuildable until the remainder of the street is dedicated to the public.
a. Streets shall be classified by the city engineer as arterial, collector, local or alley. The street hierarchy shall be defined by the city engineer based on road function and average daily traffic in accordance with the city standards.
b. Each street shall be classified and designed for its entire length to meet the standards for one of the street types defined in the city standards.
c. The developer shall demonstrate to the planning and zoning commission’s and city council’s satisfaction that the distribution of traffic to the proposed street system will not exceed the requirements set forth in the city standards.
4. Street width. Street width shall consider possible limitations imposed by sight distances, climate, terrain, and maintenance needs. To minimize street costs, the minimum width assuring satisfaction of needs shall be selected. Street widths for each street classification shall conform to the city standards.
5. Pavement standards. Street pavement thickness shall vary by street classification, subgrade properties and pavement type as specified in the city standards.
6. Street alignment. Arterial and collector streets shall be continued in as direct an alignment as topography and other conditions permit. Local streets shall conform to the prevailing topography of the subdivision.
7. Street grades. Street grades shall be within the city standards.
8. Names of streets. Streets that are aligned with existing or platted streets, or essentially so aligned, shall bear the names of the existing streets. Names for new streets shall not duplicate in spelling, nor sound phonetically similar to existing street names in the City of Maquoketa. Street names shall be approved by the planning and zoning commission and the city council.
9. Reserve strips. No privately owned reserve strip, except open space proposed to be deeded to the city or to a homeowners association within the subdivision, shall be permitted which controls access to any part of the subdivision or to any other parcel of land from any street, or from any land dedicated to public use, or which may be so dedicated.
Any property owner of abutting property requesting additional access to 17th Street and Carlisle Drive shall be required to have their property annexed to the City of Maquoketa.
Easements shall be provided as determined necessary for public utility requirements. Public utility easements shall measure at least ten (10) feet on either side of the utility line and may vary as needed. Storm sewer easements, sanitary sewer easements and water main easements shall be at least twenty (20) feet in width.
1. Curb requirements and construction shall be in accordance with the city standards.
2. Where curbing is not required, as in planned developments or within two (2) miles of the city limits, edge definition and stabilization shall be furnished as recommended by the city engineer. Shoulders and swales shall be reviewed on a case-by-case basis with the city engineer.
3. Curbing shall be designed to provide a ramp for wheelchairs and handicapped access as required by the Code of Iowa and the city standards.
1. Sidewalks shall be required on all public street frontages and shall be constructed in accordance with the city standards.
2. Sidewalks shall be placed four (4) feet behind the curb parallel to the street, unless an exception has been permitted by the city engineer to preserve topographical or natural features or to provide visual interest, or unless the developer shows that an alternative pedestrian system provides safe and convenient circulation.
1. A Planned Unit Development (PUD) is a subdivision process established to allow variation from traditional development standards identified in the Subdivision Ordinance of the City of Maquoketa, Iowa. The process is intended to allow flexibility in the development process in exchange for creative design alternatives, greater variety and innovation in land uses and structural appearances, larger expanses of parks and open spaces, more extensive landscaping, and higher protection of natural features and unique resources.
2. A PUD shall not be construed solely as a mechanism to waive requirements of this Ordinance. A PUD must be determined to be in the interest of and to protect the health, safety and general welfare of the public. A PUD must be consistent with the comprehensive plan and the general intent of this Ordinance.
3. A PUD may only consist of properties that contain either R-1 (as defined in City of Maquoketa Code of Ordinances Title V Chapter 1D) or R-2 (as defined in City of Maquoketa Code of Ordinances Title V Chapter 1E) zoning classifications and property uses, or both.
4. A PUD shall have a common open space, accessible to all lots or units, equal to a minimum of twenty-five percent (25%) of the gross area of the development site. No streets, driveways, or parking areas may be included as part of the required open space. Preservation, maintenance and ownership of required open space with a PUD shall be accomplished by: (1) dedication of the land as a public park or parkway system, if accepted as such by the city; or (2) establishment of a property owners’ or homeowners’ association, with bylaws or regulations governing preservation, maintenance and ownership of the open space.
5. The PUD process may be used to allow infill development or development of smaller parcels contiguous with existing developed areas of the city, where it may be appropriate to match existing lot and block patterns, street corridors, or other existing conditions. In instances of infill development, particularly smaller parcels, creative design emphasis shall be placed on architectural controls, landscaping and neighborhood compatibility, rather than subdivision design or the creation of large open spaces or common areas.
6. The PUD process is not intended to allow increases in development density. Allowable density shall be based upon a concept development layout using conventional land area requirements for each proposed use. Dimensional variations for a resulting PUD may include deviation from the conventional standards: lot width, lot depth, lot area, street setback (provided no required parking areas encroach on public right-of-way, public utilities, or within a private street or access area), setback requirements, or street right-of-way width.
7. The PUD process and the unique features of a proposed development may require that specifications and standards for streets, utilities, public facilities and subdivisions may be subject to modification. The city council may approve streets, utilities, public facilities and subdivisions that are not in conformance with city standards if it finds that strict adherence to such standards or requirements is not required and so long as the health, safety and general welfare of residents of the PUD, the surrounding area, and the city as a whole, are not compromised.
8. A planning conference and a sketch plan is required for a proposed PUD. The sketch plan shall identify unique conditions that warrant consideration of a PUD process, shall illustrate the density of the development by conventional development standards, and shall include a description and illustration of the dimensional variations that are requested and any special design features and innovations of the PUD. The process to review and approve a PUD shall be comparable to the preliminary and final platting process and shall include all platting documentation in addition to PUD documentation.
9. A preliminary plat is required following review of the sketch plan by the city. A preliminary plat shall illustrate the conceptual development patterns for the entire site controlled by the developer. The preliminary plat shall include all information required by this ordinance for subdivisions. In addition, the developer shall file with the preliminary plat: (1) a statement of the rationale for utilizing the PUD process; (2) identification of the city standards or ordinances which may be subject to waiver or variation; (3) the special features of the development which qualify it as a PUD; (4) a written narrative of the proposed development; and (5) calculations showing that the minimum required open spaces have been designated and set aside.
a. The zoning classification requested.
b. Site plans illustrating lot dimensions, minimum structure setbacks, easements, parks, trails, sidewalks, common open spaces, preservation areas, parking configurations and landscaping.
c. The aggregate area of private lots and area of common open space stated as percentages of the total area within the PUD.
d. Preliminary architectural styles for each building type, including, but not limited to, floor plans, unit relationships and accessory uses.
f. Covenants, restrictions and financial assurances required for the maintenance and operation of the attached residential units, common areas, permanent open spaces, joint facilities, and private streets (of permitted).