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HomeMy WebLinkAbout1978-07-11 CorrespondenceMIL,iWi ILMEO BY JURM MIGRULAB i0 / v 0\�\ 1�[-'y U The CityFo Iowa City would like in Iowa, and more specifically, in the state. LEDAt RAVIUS ANU LJLLJ to express its support for Amtrak service endorse a centrally -located Amtrak route Amtrak (the National Rail Passenger Corporation) was created to reduce high- way and airport congestion by serving urban areas,i°improve intercity rail passenger service, and to service public conveniance/necessity with an integrated national system. These are laudable goals, and could be better reached }ntIowa with a more central route 'that ':could be accessible to Iowa City t reel wa��y�ras evidenced by the statement of the Many people use AMtrak here in Io owner of Uni-Travel a3ency at the public meeting held by IDOT in Iowa City in late June. He said that he had over $60,00O worth of Amtrak bookings last year, and already had over 130,000 worth of bookings by Nay this year. Amtrak , despite the difficulty of reaching the hit. Pleasant boardig paint from Iowa City, is an inexpensive and relatively fast .othod of travel for the Fpany out-of-state students at the University of Iowa. Other people testified at t�jis meeting of the need to upgrade equipment and trackage in order to improve the often late trains. It :•ras noted that the federal and state governments subsidise other modes of travel and that Amtrak should not be excluded ;ail travelnt isilessreo or per mile to maintainand is more energyeff ir travel. lv 4tyuz IL 4D In conclusion, a central Iowa route would afford greater acessibility to and from Iowa City as well as other cities, and would be\post , as well as energy-efficient mode of transport. Slut t Iutt .�n�'r.vS�d•`�c �YJYY,Yni;�E_ ldw,n�s,�-ipY� U•S . �� �„i-�..Ftifi � �u2hsn�T�tn•- NA �vh� � � �i �ZISzn9c&+✓ `��Ya "fih 141CROTIL14ED BY JORM MICR6LAB CFDf.P 1+11DI^S ')FS MORIFS I;IICROFILi4ED BY DORM MICROLAB WILL J. HAYEK JOHN W. HAYEK C. PETER HAYEK C. JOSEPH HOLLAND • CEDAR RAPIDS AMU UES i4UIFIL�, iuvm HAYEK, HAYEK & HAYEK ATTORNEYS AT LAW 110 EAST WASHINGTON STREET IOWA CITY, IOWA 52240 June 28, 1978 AREA CODE 319 337-9606 Mrs. Abbie Stolfus City Clerk Civic Center Iowa City, Iowa 52240 Dear Abbie: Enclosed is a resolution changing the cable television franchise referendum date from November 21, 1978, to November 28, 1978. Please put that resolution on the Council's next agenda. Also enclosed is a copy of an Attorney General's opinion concerning cable television. I would appreciate it if you would distribute that opinion to the Council for their information. Very tru y Mrs, I aJohn. ayek JWH:vb Enclosures T ' :41CROFILMED BY JORM MICR+LAB CFDAP P.APIDS • DCS MOINES j I I i I i I 1 I;IICROFILi4ED BY DORM MICROLAB WILL J. HAYEK JOHN W. HAYEK C. PETER HAYEK C. JOSEPH HOLLAND • CEDAR RAPIDS AMU UES i4UIFIL�, iuvm HAYEK, HAYEK & HAYEK ATTORNEYS AT LAW 110 EAST WASHINGTON STREET IOWA CITY, IOWA 52240 June 28, 1978 AREA CODE 319 337-9606 Mrs. Abbie Stolfus City Clerk Civic Center Iowa City, Iowa 52240 Dear Abbie: Enclosed is a resolution changing the cable television franchise referendum date from November 21, 1978, to November 28, 1978. Please put that resolution on the Council's next agenda. Also enclosed is a copy of an Attorney General's opinion concerning cable television. I would appreciate it if you would distribute that opinion to the Council for their information. Very tru y Mrs, I aJohn. ayek JWH:vb Enclosures T ' :41CROFILMED BY JORM MICR+LAB CFDAP P.APIDS • DCS MOINES a hiiLR&IOILU BY JORM MICROLAB CLDAR RAVIUS Af4U ULS :101I+L., An Official Opinion From the Office of RICHARD C. TURNER Attorney Genorai of Iowa April 17, 1978 MUNICIPALITIES: Franchise Elections; Cable Television. §§47.6, 364.2, 364.6, Code of Iowa, A city council is not required to submit all cable television franchise proposals timely received by it at the same election although it is free and encouraged to do so. In any event, an yy pro cast received by a council must be submitted to a vote of the people within a reasonable time. Additional proposals may not be added to an already scheduled election without notification to the county commissioner of elections as required by §47.6 although substantial compliance with the time requirements of that section is sufficient. (Haesemeyer to Schroeder, State Representative, 4.17.78) #78.4.9 Honorable Laverne W. Schroeder, State Representative: Reference is made to your letter of April 13, 1978, in which your request an opinion of the Attorney General and state: "The City of Council Bluffs has adopted a resolution calling for a special election on May 16, 1978, for the purzose of submitting to the voters ail Bluffs has adopted a resolution catling for a special election on May 16, 1978, for the purpose of submittinc to the voters a proposal as to whether a certain applicant shall be granted a non-exclusive cable TV franchise as authorized by Section 364.2, Code of Iowa. "If a petition complying with Iowa Code Section 362.4 is filed requesting the submission to the voters of a proposal as to whether another applicant shall be granted such a similar non-exclusive franchise, would the city coun- cil be required to put that issue to the voters at the May 16 special election to give the voters a choice between the two? "After notifying the county election commissioner of a special election by a governing body for special election for one pur ose, may any additional such proposals be added without additional notification? "Please be advised that I have received a recent opinion dated March 31, 1978, by Larry Blumberg, concerning city franchises." Section 364.214), Code of Iowa, 1977, provides: "4. a. A city may grant to any person a franchise to erect, maintain, and operate plants and systems for electric light and power, heating, telephone, telegraph, cable television, district telegraph and alarm, motor bus, trolley bus, street railway or other public transit, waterworks or gasworks, within the city for a term of not more than twenty-five years. The franchise maybe granted, frn franchise shall be granted, amendedor renewed ! extendedan ror renewed. but no ex- clusive "b. No such ordinance shall become effective unless approved at an elec. tion. The proposal may be submitted by the council on its own motion to the voters at any city election. Upon receipt of a valid petition as defined in section 362,4 requesting that a proposal he submitted to the voters, the council shall submit the proposal at the next regular city election or at a special election called for that purpose prior to the next regular city elec- tion. If a majority of those voting approves the proposal the city may pro• ceed as proposed. "c. Notice of the election shall be given by publication as prescribed in section 49.53 in a newspaper of general circulation in the city. "d, The person asking for the granting, amending, extension, or renown] ofa franchise shall pay the costs incurred in holding the election, including the costs of the notice. A franchise shall not be finally effective until an ac- ceptance in writing has been filed with the council and payment of the costs has been made." The notice requirements of §49,53 referred to in §364,2(4)(c) are as *1. � 141CRor IL14ED BY DORM MICR+LAE Cf PAR PAPM! •DCS 1401NES MUNICIPALITIES I Z 2 Ml(ROFILi4ED BY JORM MICROLAB Honorable Laverne W. Schroeder IM3 CEDAR RAvlus AIID uLs }luaiu, ;J1111 3 follows: "Publication of ballot and notice. The commissioner shall not less than four, nor more than twenty days prior to the day of each election, except those for which different publication requirements are prescribed by law, publish notice of the election. Consideration must also be given §47.6, which provides: "Dates for special elections. "1. The governing body of any political subdivision which has authoriz- ed a special election to which section 39.2 is applicable, shall by written notice inform the commissioner who will be responsible for conducting the election of the proposed date of the special election. If the proposed date of the special election coincides with the date of a regularly scheduled election, the notice shall be given no later than five o'clock p.m. on the last day on which nomination papers may be filed for the regularly scheduled election. Otherwise, the notice shall be given at least thirty days in advance of the date of the proposed special election. Upon receiving the notice, the com- missioner shall promptly give written approval of the proposed date unless it appears that the special election, if held on that date, would conflict with a regular election or with another special election previously scheduled for that date. "2. For the purpose of this section, a conflict between two elections ex- ists only when one of the elections would require use of precinct boundaries which differ from those to be used for the other election, or when some but not all of the qualified electors of any precinct would be entitled to vote in the other election. Nothing in this subsection shall deny a commissioner descretionary authority to approve holding a special election on the same date as another election, even though the two elections may be defined as being in conflict, if the commissioner concludes that to do so will cause no undue difficulties." The March 31, 1978 opinion of the Attorney General to which you refer involved two questions. The first was whether or not a city would be re- quired to issue its franchise to two or more cable TV companies if the voters approved more than one company. The second question was whether or not a city council would be required to issue a franchise to a company which had received voter approval or could it issue a franchise to another company which had also received voter approval. The opinion concluded that if the voters approved different proposals the city has discretion in the granting and withholding of franchises. It could grant to both, grant to none, or grant to only one. Thus, the opinion did not directly reach either of the questions you now present. It is apparent under §364.2(4)(b) that a proposal to grant a cable televi- sion franchise may be submitted to the voters either by the council on its own motion or upon a valid petition requesting such submission. Upon the happening of either of these events, the requirement of the statute is that the council "shall submit the proposals at the next regular city election or at a special election called for that purpose prior W the next regular city election." Do the words "that purpose" refer to any special election already called for the purpose of approval of any cable television franchise or do they refer to a special election called only for the purpose of considering the particular cable television franchise proposal in question? In other words, 141CROHL14ED BY JORM MIC R+LAB cronR HANDS • ars MOVIFs April 17, 1978 MUNICIPALITIES r� t41l.kUl ILi4LU BY JORM MICROLAB • LEDAk RAPIDS Af1U JLJ ;IU:JIu, ..1:111 _ Honomble Laverne W. Schroeder 3 April 17,1978 in the situation you describe where a special election has already been called for the purpose of considering one cable television franchise grant is a city council obliged to submit any other timely cable television franchise pro- posals at the same election or may it schedule separate special elections for each such proposal or even wait until the next regular city election for one or more of them. In this connection, it is worth noting that the next regular- ly scheduled city election will not occur until November, 1979. Section 376.1. In our opinion, the city council is not required to submit all proposals sub- mitted to it at the same election although it is free to do so provided the various proposals are submitted in time to be included in the same special election. Certainly, it would be much more convenient for the voters if they had to go to the polls only once to vote on cable television franchises and it would also reduce the costs incurred by the persons seeking such franchises if the proposals were all submitted at a single special election, Moreover, the argument that the people would be confused if they had to consider more than one proposal at the same time is untenable. As stated in Lame v. Kramer, 259 Iowa 675, 145 N.W.2d 597, 602 (1966): "Defendant contends under his sixth and seventh propositions the trial court should not have required him to call a special election on granting a gas franchise to private utility when the town was in the process of establishing its own gas distribution system pursuant to a vote of the elec- torate; that causing a notice of election on the question of purchasing gas from Northern and a notice on the question of granting a franchise to Iowa Power and Light to be published in the same issue of the same paper would confuse the voters; the fact plaintiffs waited until after they knew the coun. cil planned to hold an election on the contract before presenting theirpeti- tion for a franchise election, justifies an inference the presentation of the franchise petition was not a good faith effort to ascertain the desire of the people on the question of the sale of natural gas, "Defendant's argument in support of these assignments is without merit. Elections were required on both questions by statute. We believe the voters are certainly able to distinguish an election granting a franchise from one for the purchase of gas by a municipally -owned plant. The question of plain- tiffs' good faith is not involved." The words "that purpose" in §364.2(4)(b) refer to the submission of a pro• posal to the voters and each such proposal in turn refers to the granting of a cable television franchise to a specific person or company. Thus, "a special election called for that purpose" refers to a special election called for the purpose of submitting a specified company's request for a franchise to the people and not to a special election called for the purpose of submitting some other company's franchise proposal to the electorate or to a special election called for the purpose of generally gaining voter approval of the granting of a cable television franchise to someone. If the statute had used the words "any special election", instead of "a special election" it would be reasonable to conclude that a city council would have a duty to submit com- pany B's proposal at a special election called for the purpose of approving company A's proposal. But that is not what the statute says, However, it Is our opinion that a city council would have to submit any franchise proposal to the voters within a reasonable time after it has been submitted to them. For example, in the situation you present, It would not be reasonable for the city council to submit on its own motion company A's proposal on May 16, 1978, and then require all other applicants to wait until the regular city election in November of 1979. As stated in 29 C.J.S., p. 173, Elections, §77: "Time is an essential element of the valid election. The time for holdingg an election must be fixed in advance either by law or by the officer or of. 10001 MUNICIPALITIES IdICROf ILI1f0 9Y JORM MICR�LAB Cf OAR RAPIDS • DfS 140111fS PM 1•IILRUf ILi'ILB BY JORM 1.11CROLAB Honorable Laveme W. Schroeder 10606 CLOAR RAPlus Afiu UL,) 4 ficers empowered by law to designate the time, and when no special length of time is required, it must be reasonable time. " •0• "In general, unless controlled by constitutional provision, the legislature may fix the time for holding of an election, or, as in the case of special elec. tions, it may provide for some designated official or agency to fix it. Such official or agency may be given a discretion in fixing the date of election, but the discretion must be exercised reasonably. While it is always difficult to determine what is a reasonable or unreasonable length of time under different circumstances, some guidance as to the short time standards applied by the Iowa Supreme Court in a §364.2(4)(b) case can be found in Iowa Public Service Co. v, Tourgee, 208 Iowa 36, 222 N.W. 882 (1929). There, the Court held that a mayor's delay of five days in calling a special election on a peitition for an election franchise was so unreasonable under the circumstances as to justify a writ of man- damus compelling the calling of the special election. Thus, while as we have noted, the city council is under no statutory man. date to hold more than the one election scheduled for May 16, 1978, on that date it is entirely free and encouraged to do so. Holding all elections on pro- posed cable television franchises on the same day would serve the conve- nience of the voters, reduce costs, afford the widest choice to the electorate and enhance competition among the applicants. Turning to your second question, it is our opinion that additional pro- posals may not be added to an already scheduled election without com• pliance with the notification requirements of §47.6. Nevertheless, we do not think strict compliance with the 30 day requirement of §47,6 is demanded so long as there is substantial compliance and the commissioner of elections has sufficient time to include the additional ballot proposals. Section 364,6 provides: 'Procedure. A city shall substanstially compply with a procedure establish. ed by a state law for exercising a city power. If a procedure is not establish- ed by state law, a city may determine its own procedure for exercising the power.' (Emphasis added) Moreover, §47.6(2) specifically confers discretion on the commissioner to hold more than one election on the same day. y MICROFIL14ED BY , JORM MICR+LAB crOAR RAPIDS • DES MOINES April 17,1978 MUNICIPALITIES