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HomeMy WebLinkAbout2013-08-06 Correspondence2f(1) PROT'r',STOF REZONING TO: HONORABLE MAYOR AND CITY COUNCtl, - IOWA CITY, IOWA C)TY OF 10 TY W the undersigned beii}g the owners of property i��cludcd in the proposed zoning change, or the owners of property which is located within tw�`itli�decY`Iezet� of e cxterio boundaries of the property for which the zoning change is proposed, do hereby protest the rezoning of the following property: rt%ar2Z is /� IU/ - dc�/ j3 vzr�hG�')ZOr �A) ,zt This protest is signed and acIcnowledged with the intention that such rezoning shall not become effective except q the favorable vote of at least duce- fourths of all the members of the council, all in accordance with Section 414.5 of the Code of Iowa. Property Address: Property Owner(s): By ��� � s � Vii✓ ----� 0 Notary :Public in and for the State or Io AUTHORIZED RE PRE SENTAI'IVE SIGNING FOR PROPERTY OWNER(S): STATE OF IOWA ) JOHNSON COUNTY) ss: This instrument was acknowledged before me 01) (name(s) of person(s)) as _ (Date) by -- — (type of authority, such as officer, trustee) of (name of property owner) . Notary Public in and for the State oCIowa 02/2013 Orib: Subd Folder Co: CA — PCD - Council - Media File 1At ZACHARY KENYGN a INDIVIDUAL PROPERTY OWN ER(S): G,w r– z ,,. * My Commission Expires STATE 01 IOWA ) ='fir M JOHNSON COUNTY) ss: -�'- 7/ This instrument was aclolowledged before me ozl. � =' y Q (Dated ! ` 11ai11e(s) of and ll1d1v1dLla1 &perty owner(s)). 11 PY Notary :Public in and for the State or Io AUTHORIZED RE PRE SENTAI'IVE SIGNING FOR PROPERTY OWNER(S): STATE OF IOWA ) JOHNSON COUNTY) ss: This instrument was acknowledged before me 01) (name(s) of person(s)) as _ (Date) by -- — (type of authority, such as officer, trustee) of (name of property owner) . Notary Public in and for the State oCIowa 02/2013 Orib: Subd Folder Co: CA — PCD - Council - Media File 1At ZACHARY KENYGN a G,w Commission Number 778114 z ,,. * My Commission Expires Notary :Public in and for the State or Io AUTHORIZED RE PRE SENTAI'IVE SIGNING FOR PROPERTY OWNER(S): STATE OF IOWA ) JOHNSON COUNTY) ss: This instrument was acknowledged before me 01) (name(s) of person(s)) as _ (Date) by -- — (type of authority, such as officer, trustee) of (name of property owner) . Notary Public in and for the State oCIowa 02/2013 Orib: Subd Folder Co: CA — PCD - Council - Media File I am protesting the proposal to build a multi - family (16 condominiums) on a small parcel on First Avenue North: REZ -13- 00004. This shallow, steeply sloped site is not appropriate for a large structure that requires the disturbance of about 40% of the earth and the building of critical, high- reaching retaining walls. Mature trees which absorb rain /storm water and snow melt from the much higher terrain to the south will be destroyed. Increasing the amount of impervious surfaces will exacerbate water run -off onto Hickory Hill Park and its parking lot. Carbon emissions and waste polution from dozens of vehicles coexistent with the the building creates a major environmental hazard to the Park. This goes against Zoning Code 14 -1A -3 Purpose (8). A further non - observance of the Code lies in specific provision (5) of the Purpose section:" Lessen congestion in the streets and promote safe and effective access to property`: There are more than 130 homeowners in the Bluffwood neighborhood who have a single access /egress from and to First Avenue. Increasing the amount of traffic on First Ave. going south will threaten the safety and security of these residents, many of whom have small children whose unimpeded access to schools and emergency medical facilities must be assurred The construction of a large multi - family structure on a small ecologically sensitive lot diminishes the quality of life of the area's homeowners, increases congestion, and devalues property values. It would also be a reckles disregard for the life and health of Hickory Hill Park, a treasure that belongs to allothe citizens of Iowa City. o 0 ii Sincerely yours, LU LUI >_ � rf7- N LL Mary Gilbert ,z•, 52- z y s Matt Hayek Mayor of Iowa City 410 E. Washington Iowa City, IA 52240 Dear Mayor Hayek, 2013 JUL. 23 0111: 09 CITY CLERK 10141A CITY, ILA Please do not approve implementation of the Gateway Project. 1639 Ridge Rd. Iowa City, IA 52245 July 20, 2013 Per the Press Citizen, Dubuque Street has been closed due to flooding In 1993, 2008 and most recently this year: 1998 — 35 days 2008 — 35 days 2013 —14 days Total of 84 days From January 1998 until July 20, 2013 is a total of 7,506 days. This means Dubuque St. was closed only 0.01% of that time. There were 18,099 days from Jan.1964 until July 20, 2013 and the 84 days represent only 0.0004% of that time. Iowa City taxpayers should not spend over $40,000,000 to correct something that has impeded us such a small percentage of time over the years. We were able to reach any other destination in Iowa City or Coralville that was not flooded itself by other streets. It may have taken a little bit longer, but it was simple to achieve. The additional sales tax money set aside for this project should be directed toward the cost of relocating the wastewater treatment plant. I have inquired at several of the City Offices and none has a list of the days Dubuque St. has been closed due to flooding since it was widened in 1964. We have lived in Iowa City since August 1964 and do not recall any other lengthy flooding closures from 1964 through July 20, 2013 There are businesses in Iowa City that deserve flood protection such as those along south Riverside Drive. There are no businesses to flood on this segment of North Dubuque Street. Construction of the proposed elevation will: Close or impede traffic on Dubuque far longer than the flooding. I have read it will require two building seasons. It will bring traffic noise closer to homes and apartment buildings on the east side of Dubuque Street. Construction will consume considerable amounts of oil and gas and cause environmental contamination with their use. The noise level during construction will be high. Iowa City is and will be a wonderful place to live if Dubuque St. is left just as it is. Thank you for reading this letter and know that I will be grateful if you cast a negative vote. Sincerely, cc: Connipion, Terry Dickens, Rick Dobyns, Susan Mims, Michelle Payne, Jim Throgmorton 2f(2) Marian Karr From: Darrell Eyman <darrell- eyman @uiowa.edu> Sent: Tuesday, July 23, 2013 5:30 PM To: Council Subject: Gateway Project Dear Council Members, I want to express my intense opposition to the currently proposed Gateway Project. As a resident of the Wendram Bluff development off of Linder Road, I am acutely aware of the issues and inconveniences resulting from the flooding of Dubuque Street. I recognize the necessity for flood mitigation involving Dubuque Street, and I urge you to proceed in resolving this problem with a less expensive, less obtrusive, and more aesthetically pleasing plan. Thank you for your attention to this appeal. Sincerely, Joy Eyman 4 Pendale Terrace NE Iowa City, Iowa eymanim @mchsi.com r � =0- .. ®�r� CITY OF IOWA CITY M E M 0 RA N D U M Date: July 22, 2013 To: City Clerk From: Kent Ralston; Acting Traffic Engineering Planner e tp__ Re: Item for August 6, 2013 City Council meeting; Install (2) YIELD signs on Pinto Lane at the intersection of Whispering Meadow Drive and install (2) YIELD signs on Blazing Star Drive at the intersection of Pinto Lane. As directed by Title 9, Chapter 1, Section 3B of the City Code, this is to advise the City Council of the following action: Action: Pursuant to Section 9 -1 -3A (5); Install YIELD signs at the following locations: the southwest and northeast corners of the Pinto Lane / Whispering Meadow Drive intersection and the northwest and southeast corners of the Pinto Lane / Blazing Star Drive intersection. Comment: This action is being taken to assign right of way on newly constructed public streets. Paving improvements accepted by City Council at their July 23, 2013 meeting. 2f(3) w a 01 C- C-) N �- G� ro cn 2f(3) r -- �_ CITY OF IOWA CITY 2f(4) h MEMORANDUM Date: July 22, 2013 To: City Clerk From: Kent Ralston; Acting Traffic Engineering Planner L`i67'_— Re: Item for August 6, 2013 City Council meeting; Install (2) YIELD signs on Westminster Street at the intersection of Teton Circle. As directed by Title 9, Chapter 1, Section 3B of the City Code, this is to advise the City Council of the following action: Action: Pursuant to Section 9 -1 -3A (5); Install YIELD signs at the southwest and northeast corners of the Teton Circle / Westminster Street intersection. Comment: This action is being taken to assign right of way on newly constructed public streets. Paving improvements accepted by City Council at their July 23, 2013 meeting. o �- ...�. �n ':::� rte- �. <7� N ! :( "C cn �.��U, ®fir CITY OF IOWA CITY -(5 .:ui AN MEMORANDUM Date: July 22, 2013 To: City Clerk From: Kent Ralston; Acting Traffic Engineering Planner LAP_ Re: Item for August 6, 2013 City Council meeting; Install (1) STOP sign on Preston Lane at the intersection of the Camp Cardinal Boulevard and (1) YIELD sign on Preston Lane at the intersection Ryan Court. As directed by Title 9, Chapter 1, Section 3B of the City Code, this is to advise the City Council of the following action: Action: Pursuant to Section 9 -1 -3A (5); Install (1) STOP sign at the northeast corner of the Camp Cardinal Boulevard / Preston Lane intersection and (1) YIELD sign at the southwest corner of the Preston Lane / Ryan Court intersection. Comment: This action is being taken to assign right of way on newly constructed public streets. Paving improvements accepted by City Council at their July 23, 2013 meeting. N O C) Ze C'3 N © :c pM�••� Marian Karr From: Nancy Ostrognai <nancy.ostrognai @g mail. com> Sent: Thursday, August 01, 2013 12:36 PM To: Council Subject: SEATS This correspondence will become a public record. Dear Councillors: I am writing to remind you to look for an alternative to the elimination of the half fare for SEATS. I know that you are in a very difficult position maintaining a balanced budget, but it breaks my heart watching this entire country balance its budget on the backs of its most vulnerable citizens. My hope is that this community is ruled less by expedience and greed and more by higher values. Nancy Ostrognai a` 1 Marian Karr From: Chris Gilstrap <chrism.gilstrap @gmail.com> Sent: Monday, August 05, 2013 5:26 AM To: Matt Hayek; Council Subject: Recent move -in to Iowa City District A Mayor Hayek and Council Members, My name is Christopher M Gilstrap and I recently moved to 965 Slothower Ave, a rental property, which is located on the far west side of this city. The house I live in is incorporated into the city however the western portion of the lot I live on is still in the county. My wife and I moved to this address from an apartment in Coralville in June in order to provide more room for our family to expand and grow. We chose this property because of the size of the house, lot, and the fact that it was still in Iowa City, but far enough out that we could enjoy county life. The house is an old four bedroom century home that has well service and septic. The only service we currently receive from the City of Iowa City is trash and recycling pick up. Around the beginning of July I received a bill from the City of Iowa City for the amount of $120.00. I could think of no reason why I would have gotten a bill so I called the City offices to discuss the matter and find out what I was being charged for. The first employee I talked to was polite and informed me that this was a deposit I was being charged for moving into the City of Iowa City. Upon hearing this I became upset, and asked why I was being charged a fee to move into Iowa City when I was receiving no other services from the City besides trash and recycling pick up? I asked to speak with the employees supervisor and was connected with that person. I asked the same question of this person and was told the same thing. I asked if I had trash and recycling service cancelled if the fee could be lifted and I was told no, that this was a mandatory deposit of all persons moving into Iowa City. The supervisor asked if I had any city "equipment" on my property and I informed her that I had not received the new trash cans and still did have the blue recycling bins from the former tenant but they were in sorry shape. The supervisor told me they would transfer me to the Solid Waste Department at the termination of our call to see about getting the trash cans (which I was told I would not be able to receive them and was not added to any lists). I asked the supervisor again if I could contest this fee and what would happen if I did not pay it? I was told that I could not contest it, that it was city policy, and that if I did not pay it, the fee would be sent to a collection agency. I am extremely upset by this. I moved into Iowa City to offer my family a better opportunity, and have been met with a fee for moving in? How do you expect to continue to gain population and grow if this fee is assessed of all persons wanting to live here? Furthermore, I do not have city water OR sewer and have costs involved with maintaining the well and septic (not to mention propane) that I incur because I do not receive these basic city services. This added fee only burdens my already expensive rental property. I am writing you to ask for special dispensation from this fee, or to have the Council reconsider this fee for persons who are in my unique situation. Thank you for your time, and I look forward to hearing back from you soon. Christopher M. Gilstrap 965 Slothower Ave Iowa City,IA 319 -541 -7052 chrism.gilstrap 2tgmail.com 1 Marian Karr From: Chris Gilstrap <chrism.gilstrap @g mail. com> Sent: Monday, August 05, 2013 12:39 PM To: Dennis Bockenstedt Cc: Marian Karr; Tom Markus; *City Council Subject: Re: Utility account security deposit Mr. Bockenstedt- This "letter" does nothing to answer what services are being covered by the $120 that your City is requiring of me. I have no services other than trash. So are you telling me that if I cancel trash pick up by your city employees then I would be exempt from the fee because I have no services in Iowa City, thus I would have no bill? Hard to justify charging a tenant $120 when they don't use any City services at all isn't it? Furthermore, though I do have trash service, I had to pay for my OWN trash cans as I was denied City trash cans for my use and the small blue boxes that used to be recycling bins ten years ago, hardly require a $120 deposit and if they do, you can gladly have them back. Chris M Gilstrap On Mon, Aug 5, 2013 at 11:51 AM, Dennis Bockenstedt < Dennis- Bockenstedtkiowa- cit�org> wrote: Dear Mr. Gilstrap, Attached is a letter addressing your concerns to the Mayor and City Council in regards to the $120 charge on your utility account. If you have any questions, please feel free to give me a call. Thank you. Dennis Bockenstedt Finance Director 410 E. Washington Street Iowa City, IA 52240 319- 356 -5053 phone August 5, 2013 Christopher M. Gilstrap 965 Slothower Ave Iowa City, iA 52246 Dear Mr. Gilstrap, (3 19) 356 -5000 (3 19) 356 -5009 FAX www.lcgov.org am responding to your concerns about the City charge for $120.00 on your recently opened utility account with the City. The City charges a standard minimum security deposit of $120.00 to all renters regardless of the services that the renter receives. The security deposit belongs to you but is being held by the City as security for your account. When your rental account is closed, the security deposit will be used to make your final payment and the remaining balance will be returned to you. We apologize for any inconvenience that this may have caused you, and we welcome you to Iowa City. Sincerely, Dennis Bockenstedt Finance Director IN THE SUPREME COURT OF IOWA NO. 13 -0536 ANTHONY BROWNS, Plaintiff - Appellant, VS. CITY OF IOWA CITY, an Iowa Municipal Corporation, Defendant - Appellee Johnson County No. CVCV074442 Appeal from the Johnson County District Court The Honorable Mitchell E. Turner PLAINTIFF'S PROOF BRIEF (REQUEST FOR ORAL SUBMISSION) AUG -6 2013 ANTHONY A. BROWNE anthonybrownenlive.com Pro se Plaintiff - Appellant (7!e- TABLE OF CONTENTS TABLEOF CONTENTS ................................................................... ..............................2 TABLE OF AUTHORITIES ............................................................. ..............................4 CERTIFICATE OF SERVICE AND FILING ............................ ..............................7 CERTIFICATE OF COMPLIANCE .............................................. ..............................8 CERTIFICATE OF COSTS ............................................................... ..............................8 STATEMENT OF THE ISSUES PRESENTED FOR REVIEW .......................9 ROUTING STATEMENT ................................................................ .............................12 REQUEST FOR ORAL SUBMISSION ........................................ .............................13 STATEMENT OF THE CASE ........................................................ .............................13 STATEMENT OF THE FACTS ..................................................... .............................16 ARGUMENT.......................................................................................... .............................22 I. THE DISTRICT COURT ERRED WHEN IT ANNULLED THE PLAINTIFF'S WRIT OF CERTIORARI ........................................... .............................22 A. PRESERVATION OF ERROR ....................................... .............................22 B. STANDARD OF REVIEW1 ............................................. .............................25 C. ARGUMENT ....................................................................... .............................26 1. Introduction to Street Food ............................................................... .............................26 2. Street Food's History in the United States ....................................... .............................26 3. Street Food in the United States Today ........................................... .............................27 4. § 10 -3 -5 (USE BY MOBILE VENDORS) ( 2012) .......................... .............................30 5. § 10- 3 -5(G) Administrative Rules (Rev. 05- 2011) .......................... .............................34 6. Writ of Certiorari Should Have Been Sustained ............................. .............................36 a. Defendants Administrative Rules Violated Plaintiffs Right to Procedural Due Process....................................................................................................... .............................36 i. Procedural Due Process Standard .......................................... .............................36 ii. § 10 -3 -5 Creates a Protectable Property Interest ................ .............................37 I. Property Interest Standard .......................................... .............................37 II. Entitlement to a Permit .............................................. .............................38 III. Permit is Actually a Lease ......................................... .............................41 IV. Substantial Profits are an Interest in Property ....... .............................51 V. § 10 -3 -5 Creates a Protectable Property Interest .... .............................51 iii. Administrative Rules Caused an Erroneous Deprivation of Plaintiffs Right to Vend Street Food at a Mobile Vending Location in City Plaza ... .............................52 I. Standard to Assess Procedures Necessary to Protect Property Interestsof U.S. Citizens ......................................................................... .............................52 II. Private Interest of the Plaintiff ................................ .............................53 2 III. Risk of Erroneous Deprivation of the Plaintiff's Right to a Mobile Vendor Permit Through the Use of the City Manager's Administrative Rules and the Probable Value of Additional or Different Procedural Safeguards . .............................53 IV. Public Interest of the Defendants ............................ .............................54 V. Balancing the Foregoing Three Factors, the Plaintiff's Procedural DueProcess Rights Were Violated ....................................................... .............................54 iv. The District Court's Legal and Factual Conclusions Holding the Plaintiff's Procedural Due Process Rights Were Not Violated Were Legally Erroneous ............ 59 b. Defendants Did Not Act In Accordance With § 10- 3- 5 .......... .............................60 c. Defendants Actions Were Unreasonable, Arbitrary, or Capricious ..................... 61 II. THE DISTRICT COURT ERRED WHEN IT GRANTED THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ...... .............................61 A. PRESERVATION OF ERROR ............................... .............................61 B. STANDARD OF RE VIE W1 . .................................... .............................62 C. ARGUMENT .............................................................. .............................63 III. THE DISTRICT COURT ERRED WHEN IT DENIED THE PLAINTIFF'S CROSS - MOTION FOR SUMMARY JUDGMENT .........................63 A. PRESERVATION OF ERROR ............................... .............................64 B. STANDARD OF REVIEW1. .................................... .............................64 C. ARGUMENT .............................................................. .............................65 IV. THE DISTRICT COURT ERRED WHEN IT DENIED THE PLAINTIFF'S MOTION TO AMEND ............................................. .............................66 A. PRESERVATION OF ERROR ............................... .............................66 B. STANDARD OF REVIEW1. .................................... .............................66 C. ARGUMENT ............................................................. .............................67 CONCLUSION..................................................................................... .............................68 AUG - 6 2013 3 TABLE OF AUTHORITIES CONSTITUTIONAL PROVISIONS Amend. XIV, § 1 of the U.S. Constitution ........................................... .............................36 Article I, § 9 of the Iowa Constitution .................................................. .............................36 CASES Allison- Kesley Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841 ( 1992) ........ .............................67 Bagelmann v. First Nat'l Bank, 823 N.W.2d 18 ( 2012) ..................... ............................62, 64 Bishop P. mood, 426 U.S. 341 ( 1976) ........................................................ .............................38 Board of Regents v. Roth, 408 U.S. 564 ( 1972) ....... ............................... .........................passim Bowers v. Polk County Bd. of Supervz:rors, 638 N.W.2d 682 ( 2002) .......... .............................36 Central States Theatre Corporation v. Sar, 66 N.W.2d 450 ( 1954) ........... .............................48 City of Des Moines P. Pub. Emp. Rel. Bd., 275 N.W.2d 753 ( 1979) ........ .............................38 Davis P. Ottumwa YMCA, 438 N.W.2d 10 ( 1989) ................................. .............................67 Foman P. Davis, 371 U.S. 178 ( 1962) ....................................................... .............................67 Glenn v. Carlstrom, 556 N.W.2d 800, 804 ( 1996) ................................... .............................67 Grace Hodgson Trust v. McClannahan, 569 N.W.2d 397 ( 1997) ............. .............................66 Hanover Insurance Co. P. Alamo Motel, 264 N.W.2d 774 ( 1978) ............ .............................45 Hawkeye Commodity Promotions, Inc. P. Vilsack, 486 F.3d 430 ( 2007 ) ........................passim Hewitt P. Helms, 459 U.S. 460 ( 1983) ...................................................... .............................51 In re Guardianship of Wiley, 34 N.W.2d 593 ( 1948) ................................ .............................38 IN RE PRIMARY ROAD NO. 10WIA 141,114 N.W.2d 290 ( 1962) .......................... 42 Kelly P. Brewer, 239 N.W.2d 109 ( 1976) ................................................... .............................45 Lee v. North Dakota Park Serv., 262 N.W.2d 467 ( 1977) ...................... .............................42 Mathews P. Eldridge, 424 U.S. 319 ( 1976) ............. ............................... .........................passim Movers Warehouse v. City of Little Canada, 71 F.3d 716 ( 1995) .............. .............................31 Mowrey P. Schuh, 296 N.W. 822 ( 1941) .................................................. .............................44 MRM, INC. v. City of Davenport, 290 N.W.2d 338 ( 1980) ................... .............................51 Mueller v. Wlellmark, Inc., 818 N.W.2d 244 ( 2012) ............................ ............................63, 65 M -Z Enters., Inc. P. Hawkeye -Sec. Ins. Co., 318 N.W.2d 408 ( 1982) ..... .............................66 New Orleans v. Dukes, 427 U.S. 297 ( 1976) ........................................... .............................30 Paul v. Blakely, 51 N.W.2d 405 ( 1952) ................................................... .............................41 Perkins P. Bd. of Supervisors, 636 N.W.2d 58 ( 2001) ............................... .............................25 Resnick v. City of Ft. Madison, 145 N.W.2d 11 ( 1966) ........................... .............................42 Simonsen v. Todd, 154 N.W.2d 730 ( 1967) .............................................. .............................43 Snyder P. Bernstein Brothers, 208 N.W. 503 ( 1926) ................................... .............................47 Sorci v. Iowa Dist. Ct., 671 N.W.2d 482 ( 2003) ................................. ............................37, 52 State P. Cullison, 227 N.W.2d 121 ( 1975) ................................................ .............................25 4 State P. Klawonn, 609 N.W.2d 515 ( 2000) .............................................. .............................40 State v. Mann, 463 N.W.2d 883 (Iowa 1990) ........................................ .............................42 THREE KC v. Ricbter, 279 N.W.2d 268 ( 1979) ................................... .............................51 Van Essen v. McCormick Enterprises Co., 599 N.W.2d 716 ( 1999) ....... .............................45 MUNICIPAL ORDINANCES Administrative Code of the City of New York City § 17- 307(b) (2013) ......................29 § 10- 3 -5(G) Administrative Rules (Rev. 12- 2012) ............................... .............................57 City of Boston Municipal Ordinance 2011 C. 5, Mobile Food Trucks, 4/6/2011.........29 Code of Ordinances Houston, Texas § 20 -18 and 40- 261(b) ( 2013 ) ............................29 Code of Ordinances Champaign, Illinois § 25 -46 ( 2013) ................... .............................29 Code of Ordinances Columbus, Ohio § 573.01(a) and 523.01(b) (2013) .....................29 Code of Ordinances Los Angeles County § 8.04.138 and 8.04.200 (2013) ..................29 Code of Ordinances Urbana, Illinois § 17 -1 ( 2013) ............................ .............................29 Code of Ordinances West Lafayette, Indiana § 83.01 ( 2013) ............ .............................29 IowaCity Code § 10- 1- 4( A) .................................................................... .............................40 IowaCity Code § 10- 3- 1 .................................................................... ............................29, 31 IowaCity Code § 10- 3- 5 ....................................... ............................... .........................passim IowaCity Code § 10- 3- 6 .......................................................................... .............................40 Iowa City Code § 10-5-7(G)(3) ............................................................... .............................40 Iowa City Code § 10- 5- 7( H)( 1)( e) .......................................................... .............................40 IowaCity Code § 10- 11- 3 ....................................................................... .............................40 Iowa City ORDINANCE NO. 82 -3058 ( 1982) ............................. ............................30, 39 Iowa City ORDINANCE NO. 04 -4125 ( 2004 ) .............................. .........................passim Iowa City ORDINANCE NO. 11 -4426 ( 2011) .................................. .............................16 Iowa City ORDINANCE NO. 12 -4506 ( 2012) .................................. .............................49 Madison Wisconsin General Ordinances § 9.13 (6) (n) (6), (a) and (b) (2013) ...............29 Municipal Code of Chicago § 4 -8 -010 ( 2013) ...................................... .............................29 Washington D.C. Code § 37- 131.10 ( 2013) ......................................... .............................29 LAW JOURNALS 6A C.J.S. Assignments § 2 ( 1975) ........................ ............................... Assignments and Subleases, Johnson & Hardin LLP (2008) ......... 25 Am.Jur.2d Easements and Licenses § 2, § 3, § 123 (1966) ........ 49 Am.Jur.2d Landlord and Tenant § 5 ( 1970) . ............................... Prosser and Keeton on the Law of Torts § 13 (5th ed. 1984) ....... OTHER AUTHORITIES Black's Law Dictionary (6th ed. 1990 ) ............................ 5 ............................46 ............................46 ......................41, 42 ......................41, 42 .............................41 .............................42 AUG a 6 2013 Street Foods, Artemis P. Simopoulos, Ramesh Venkataramana Bhat, Karger Publishers, ( 2000) ................................................................................ ............................25, 26 Spotlight.- School Children, Street Food and Micronutrient Deficiencies in Tanzania, Food and Agriculture Organization of the United Nations, Rome, Italy, (February 2007), htW://www..fa(-).orV./ag/ mag,.iziii.e/(-)7(:)2sl)l,h.tm ............................... .............................26 Good Food for Little Money: Food and Cooking Among Urban Wlorking- class..., Katherine Leonard Turner, University of Delaware, (Spring 2008) .................... .............................26 African American Foodways. Explorations of History and Culture, University of Illinois Press, (Dec 29, 2008) ............................................................................... .............................27 New York City Street Vendors, Columbia University Graduate School of Architecture, Planning, and Preservation, Rembert Browne et al., (Spring 2011) .. .............................27 6 CERTIFICATE OF SERVICE AND FILING I Anthony A. Browne, pro se Plaintiff- Appellant, certify that on July 27, 2013, 1 served this document and the Designation of Appendix by mailing a copy to all other parties in this matter at their respective addresses as shown below: Susan Dulek Assistant City Attorney Counsel for Defendants I Anthony A. Browne, pro se Plaintiff- Appellant, further certify that on July 27, 2013, I will file this document and the Designation of Appendix by mailing two proof copies to the Clerk of the Supreme Court, Iowa Judicial Branch Building, 1111 East Court Ave., Des Moines, IA 50319. 7 ANTHONY A. BROWNE anthony.browne&hve.com Pro se Plaintiff- Appellant BUG - 6 ?V'3 CERTIFICATE OF COMPLIANCE 1. This brief complies with the type - volume limitation of Iowa R. App. P. 6.903(1)(g)(1) or (2) because: this brief contains 13,842 words, excluding the parts of the brief exempted by Iowa R. App. P. #6.903(1)(g)(1). 2. This brief complies with the typeface requirements of Iowa R. App. P. #6.903(1)(e) and the type -style requirements of Iowa R. App. P. #6.903(1)0 because: this brief has been prepared in a monospaced typeface using Garamond size 14 in Microsoft Word 2013 DATED this 20th day of July, 2013. ANTHONY A. BROWNE anthony.browneghve. com Pro se Plaintiff- Appellant CERTIFICATE OF COSTS I hereby certify that the cost of printing Plaintiff- Appellant's Proof Brief is ANTHONY A. BROWNE anthony.brownenlive.com Pro se Plaintiff- Appellant STATEMENT OF THE ISSUES PRESENTED FOR REVIEW I. DID THE DISTRICT COURT ERR WHEN IT ANNULLED THE PLAINTIFF'S WRIT OF CERTIORARI? CONSTITUTIONAL PROVISIONS Amend. XIV, § 1. of the U.S. Constitution ........................................... .............................36 Article I, § 9 of the Iowa Constitution .................................................. .............................36 CASES Bishop P. Vood, 426 U.S. 341 ( 1976) ........................................................ .............................38 Board of Regents v. Roth, 408 U.S. 564 ( 1972) ....... ............................... .........................passim Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682 ( 2002) .......... .............................36 Central States Theatre Corporation v. Sar, 66 N.W.2d 450 ( 1954) ........... .............................48 City of Des Moines v. Pub. Emp. Rel. Bd., 275 N.W.2d 753 ( 1979) ........ .............................38 Hanover Insurance Co. v. Alamo Motel, 264 N.W.2d 774 ( 1978) ............ .............................45 Hawkeye Commodity Promotions, Inc. v. Vilsack, 486 F.3d 430 ( 2007 ) ........................passim Hewitt v. Helms, 459 U.S. 460 ( 1983) ...................................................... .............................51 In re Guardianship of ililey, 34 N.W.2d 593 ( 1948) ................................ .............................38 IN RE PRIMARY ROAD NO. IOWA 141,114 N.W.2d 290 ( 1962) .......................... 42 Kelly v. Brewer, 239 N.W.2d 109 ( 1976) ................................................... .............................45 Lee P. North Dakota Park Sera, 262 N.W.2d 467 ( 1977) ...................... .............................42 Mathews v. Eldridge, 424 U.S. 319 ( 1976) ............. ............................... .........................passim Movers ilarehouse v. City of Little Canada, 71 F.3d 716 ( 1995) .............. .............................31 Mowrey v. Schuh, 296 N.W. 822 ( 1941) .................................................. .............................44 MRM, INC. v. City of Davenport, 290 N.W.2d 338 ( 1980) ................... .............................51 New Orleans v. Dukes, 427 U.S. 297 ( 1976) ........................................... .............................30 Paul v. Blakely, 51 N.W.2d 405 ( 1952) ................................................... .............................41 Perkins v. Bd. of Supervisors, 636 N.W.2d 58 ( 2001) ............................... .............................25 Resnick v. City of Ft. Madison, 145 N.W.2d 11 ( 1966) ........................... .............................42 Simonsen P. Todd, 154 N.W.2d 730 ( 1967) .............................................. .............................43 Snyder P. Bernstein Brothers, 208 N.W. 503 ( 1926) ................................... .............................47 Sorci v. Iowa Dist. Ct., 671 N.W.2d 482 ( 2003) ................................. ............................37, 52 State P. Cullison, 227 N.W.2d 121 ( 1975) ................................................ .............................25 State v. Klawonn, 609 N.W.2d 515 ( 2000) .............................................. .............................40 State v. Mann, 463 N.W.2d 883 (Iowa 1990) ........................................ .............................42 THREE KC P. Richter, 279 N.W.2d 268 ( 1979) ................................... .............................51 Van Essen v. McCormick Enterprises Co., 599 N.W.2d 716 ( 1999) ....... .............................45 9 AUG01 MUNICIPAL ORDINANCES Administrative Code of the City of New York City § 17- 307(b) (2013) ......................29 10- 3 -5(G) Administrative Rules (Rev. 12- 2012) ............................... .............................57 City of Boston Municipal Ordinance 2011 C. 5, Mobile Food Trucks, 4/6/2011.........29 Code of Ordinances Houston, Texas § 20 -18 and 40- 261(b) ( 2013 ) ............................29 Code of Ordinances Champaign, Illinois § 25 -46 ( 2013) ................... .............................29 Code of Ordinances Columbus, Ohio § 573.01(a) and 523.01(b) (2013) .....................29 Code of Ordinances Los Angeles County § 8.04.138 and 8.04.200 (2013) ..................29 Code of Ordinances Urbana, Illinois § 17 -1 ( 2013) ............................ .............................29 Code of Ordinances West Lafayette, Indiana § 83.01 ( 2013) ............ .............................29 Iowa City Code § 10- 1- 4( A) .................................................................... .............................40 Iowa City Code § 10- 3- 1 .................................................................... ............................29, 31 IowaCity Code § 10- 3- 5 ....................................... ............................... .........................passim IowaCity Code § 10- 3- 6 .......................................................................... .............................40 Iowa City Code § 10- 5- 7( G)( 3) ............................................................... .............................40 Iowa City Code § 10- 5- 7( H)( 1)( e) .......................................................... .............................40 IowaCity Code § 10- 11- 3 ....................................................................... .............................40 Iowa City ORDINANCE NO. 82 -3058 ( 1982) ............................. ............................30, 39 Iowa City ORDINANCE NO. 04 -4125 ( 2004 ) .............................. .........................passim Iowa City ORDINANCE NO. 11 -4426 ( 2011) .................................. .............................16 Iowa City ORDINANCE NO. 12 -4506 ( 2012) .................................. .............................49 Madison Wisconsin General Ordinances § 9.13 (6) (n) (6), (a) and (b) (2013) ...............29 Municipal Code of Chicago § 4 -8 -010 ( 2013) ...................................... .............................29 Washington D.C. Code § 37- 131.10 ( 2013) ......................................... .............................29 LAW TOURNALS 6A C.J.S. Assignments § 2 ( 1975) .......................................................... .............................46 Assignments and Subleases, Johnson & Hardin LLP ( 2008) ............ .............................46 25 Am Jur.2d Easements and Licenses § 2, § 3, § 123 ( 1966) ...... ............................41, 42 49 Am.Jur.2d Landlord and Tenant § 5 ( 1970) .............................. ............................41, 42 Prosser and Keeton on the Law of Torts § 13 (5th ed. 1984) ........... .............................41 OTHER AUTHORITIES Black's Law Dictionary (6th ed. 1990) ................................................... .............................42 Street Foods, Artemis P. Simopoulos, Ramesh Venkataramana Bhat, Karger Publishers, ( 2000) ................................................................................ ............................25, 26 Spotligbt: School Children, Street Food and Micronutrient Deficiencies in Tan .Zania, Food and Agriculture Organization of the United Nations, Rome, Italy, (February 2007), htth: ............................... .............................26 10 4U(; si Good Food for Little Money.' Food and Cooking Among Urban Wlorking- class..., Katherine Leonard Turner, University of Delaware, (Spring 2008) .................... .............................26 African American Foodways: Explorations of History and Culture, University of Illinois Press, (Dec 29, 2008) ............................................................................... .............................27 New York City Street Vendors, Columbia University Graduate School of Architecture, Planning, and Preservation, Rembert Browne et al., (Spring 2011) .. .............................27 II. DID THE DISTRICT COURT ERR WHEN IT GRANTED THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT? CASES Bagelmann P. First Nat'l Bank, 823 N.W.2d 18 ( 2012) ..................... ............................62, 64 Mueller P. Wlellmark, Inc., 818 N.W.2d 244 ( 2012) ............................ ............................63, 65 III. DID THE DISTRICT COURT ERR WHEN IT DENIED THE PLAINTIFF'S CROSS - MOTION FOR SUMMARY JUDGMENT? CASES Bagelmann v. First Nat'l Bank, 823 N.W.2d 18 ( 2012) ..................... ............................62, 64 Mueller P. Wlellmark, Inc., 818 N.W.2d 244 ( 2012) ............................ ............................63, 65 IV. DID THE DISTRICT COURT ERR WHEN IT DENIED THE PLAINTIFF'S MOTION TO AMEND? CASES Allison- KesleyAg Ctr., Inc. v. Hildebrand, 485 N.W.2d 841 ( 1992) ........ .............................67 Davis P. Ottumwa YMCA, 438 N.W.2d 10 ( 1989) ................................. .............................67 Foman v. Davis, 371 U.S. 178 ( 1962) ....................................................... .............................67 Glenn v. Carlstrom, 556 N.W.2d 800, 804 ( 1996) ................................... .............................67 Grace Hodgson Trust P. McClannaban, 569 N.W.2d 397 ( 1997) ............. .............................66 M -Z Enters., Inc. v. Hawkeye -Sec. Ins. Co., 318 N.W.2d 408 ( 1982) ...... .............................66 AUG T 6 l)t 11 ROUTING STATEMENT This case should be retained in the Iowa Supreme Court, as it presents substantial constitutional questions as to the validity of ordinances and administrative rules of the Iowa City Code. Specifically, on May 4`h 2004, the Iowa City Council passed ORDINANCE NO. 04 -4125 and published it May 12, 2004. ORDINANCE NO. 04 -4125 made significant changes to the Iowa City Code concerning the "permitting process" for the use of City Plaza, also referred to as the Pedestrian (or Ped) Mall, which is public, city -owned property. The permitting process for the use of public property and /or the public right -of -way in City Plaza for commercial, political, and other activities was conscientiously changed by the City of Iowa City in ORDINANCE NO. 04- 4125 from a discretionary usage, into a "use of right." This was a significant and dramatic change to the Iowa City Code, in that the permitting process for all uses of City Plaza prior to ORDINANCE NO. 04 -4125 were discretionary on the part of Iowa City officials. ORDINANCE NO. 04 -4125 removed this discretion from city officials and directed that the permits for commercial, political, and other uses of City Plaza "shall," rather than "may," be issued by Iowa City. Iowa City's stated intent in making this momentous change to the code was: "WHEREAS, it is desirable that there be uniformity in the permitting process and specific criteria to guide and limit the discretion of city employees charged with granting or denying permits for uses of City property." 12 AUG' o' , ""T,; "r, Preamble to IOWA CITY ORDINANCE NO. 04 -4125. This is a case of first impression and concerns the denial by the City of Iowa City, Defendants, of the Plaintiffs application for a permit under Iowa City Code § 10 -3 -5 (USE BY MOBILE VENDORS). The result of this case will have broad implications concerning the issuance of permits by Iowa City for the use of public, city -owned property for commercial, political, and other activities. Therefore, the Plaintiff submits that this case should be retained by the Supreme Court, as it meets the criteria for retention articulated in Iowa R. App. P. #6.1101(2)(a) and (b). QUEST FOR ORAL SUBMISSION Plaintiff requests oral submission. STATEMENT OF THE CASE The Plaintiff Anthony Browne filed a two count petition with the Johnson County Clerk April 12`h, 2012 naming the City of Iowa City as Defendants after his application for a permit to operate a mobile vending unit in City Plaza and subsequent appeal were denied by Iowa City officials. Count I was an application for Writ of Certiorari pursuant to Iowa R. Civ. P. #1.1401. Count II alleged that the process violated the Federal Constitution's Procedural Due Process Clause. The Plaintiff sought to nullify the 2012 application process for mobile vendor permits, to have the Defendants conduct a new application process without the "seniority 13 AUG -6 '� requirement" in the Administrative Rules, and to have the Defendants provide the Plaintiff compensatory damages. The Defendants filed an Answer May 3, 2012 denying the claims in their entirety. On May 30, 2012, the Honorable Mitchell E. Turner of the Johnson County District Court issued the Writ of Certiorari. (See also May 29, 2012 Hearing Transcript). The Defendants filed a Return June 12, 2012 and a Supplemental Return June 18, 2012. The Plaintiff alleged in his brief in support of the Writ of Certiorari filed June 26, 2012 that the Defendants' Administrative Rules violated the Procedural Due Process Clauses of the US and Iowa Constitutions, were not in accordance with § 10 -3 -5, and were otherwise unreasonable, arbitrary, and capricious. The Defendants filed a brief in Resistance July 10, 2012, denying the allegations in their entirety. A hearing on the merits of the Writ of Certiorari was held on July 19, 2012. (See July 19, 2012 Hearing Transcript). September 20, 2012, Judge Turner annulled the writ. On Oct. 1, 2012, the Plaintiff filed a Motion to Enlarge or Amend pursuant to Iowa R. Civ. P. #1.904(2). On Oct. 10, 2012, the Defendants filed a Resistance to the Plaintiff's Motion to Enlarge or Amend. On Oct. 17, 2012, the Plaintiff filed a Reply to the Defendants' Resistance. Judge Turner denied the Plaintiff's Motion to Enlarge or Amend Oct. 31, 2012. On Nov. 2, 2012, the Defendants filed a Motion for Summary Judgment on Count II, a Statement of Undisputed Facts, and the Affidavit of Adam Bentley. 14 AUK; { 1f': Tangentially, on Nov. 13, 2012 the Plaintiff filed a Motion to Amend and sought leave from the district court to amend the complaint pursuant to Iowa R. Civ. P. #1.402(4). The Plaintiff sought leave to add a third count seeking declaratory relief to establish his rights under ordinance § 10 -3 -5. Nov. 19, 2012, the Plaintiff filed a Resistance to the Defendants' Motion for Summary Judgment and Cross - Motion for Summary Judgment, Statement of Undisputed Facts, Affidavit of Anthony Browne, and Statement of Disputed Facts. Nov. 21, 2012, the Defendants filed a Resistance to the Plaintiffs Motion to Amend. On Nov. 29, 2012, the Defendants filed a Resistance to the Plaintiffs Cross- Motion for Summary Judgment. The Defendants did not file a Statement of Disputed Facts. A hearing on the merits of the motions for summary judgment and motion to amend was held Jan. 18, 2013 before Judge Turner. (See also January 18, 2013 Hearing Transcript). On Mar. 5, 2013, Judge Turner granted Defendants' Motion for Summary Judgment, denied the Plaintiff's Cross - Motion for Summary Judgment, and denied the Plaintiff's Motion to Amend. The Plaintiff timely filed a Notice of Appeal April 3, 2013. AUG 6 15 STATEMENT OF THE FACTS The Plaintiff Anthony Browne is a 42 year old Iowa City resident and is employed as a software engineer _ (Original Petition ¶ 1; Affidavit of Anthony Browne ¶ 1). The Defendant City of Iowa City is a municipality subject to the laws of the State of Iowa and the Iowa Constitution. (Original Petition ¶ 2; Affidavit of Anthony Browne ¶ 1). On or about January 31, 2011, the annual application process for 2011 mobile vending permits was held by the City Manager pursuant to § 10 -3 -5 and six permits were issued to: 1) Aladdin Pitas 2) George's Gyros U & P Ventures LLC /Mark Paterno & Pete Johnson] 3) Marco's Grilled Cheese Q & P Ventures LLC /Mark Paterno & Pete Johnson] 4) Nacho Taco 5) Pop's Italian Beef 6) CorNroC. (Original Petition ¶ 19; Affidavit of Anthony Browne ¶ 8) May 3, 2011. § 10-3 -5 (A) (2) (a) was amended in a collapsed reading [ORDINANCE NO 11 -4426] to read: "No more than 6 permits shall be issued each calendar year. All permits shall be issued for City Plaza except that up to 2 permits may be issued for the 100 200 and 300 blocks of Iowa Avenue..." 16 This amendment, for the first time since 1982, lowered the total number of permits below seven to six. Prior to this amendment, the ordinance allowed eight total permits. (Original Petition ¶ 21; Affidavit of Anthony Browne ¶ 9). On October 24, 2011, the Plaintiff contacted Adam Bentley from the City Manager's Office by email inquiring about the mobile vending application process. Mr. Bentley responded by email with a phone number and a request to call him. When the Plaintiff called Mr. Bentley, he hastily told the Plaintiff that it was impossible to file an application, as the City Manager's Office would not be holding an application process this year. He followed up later Nov 4, 2011 with an email that specified the City's intention not to have an application process for 2012. The email by Adam Bentley stated: "Thank you for your request. The City ordinance regarding mobile vending does allow for a maximum of eight vendors downtown on the ped mall. While the maximum does exist, staff and council have been moving in the direction to limit that number to five. The general idea behind this is that downtown is incredibly busy on Friday and Saturday nights. The consequence of having downtown vendors has been positive but negative externalities occur due to their presence. For instance, damage to the ped mall, crowding in the area, and trash cleanup are all negative safety and practical externalities that exist with downtown mobile vendors. It is for those reasons we have limited the number of downtown mobile vendors and will not be opening up the application process to the general public this year. (Original Petition T 23, 24, 25; Affidavit of Anthony Browne ¶ 10; Supplemental Return pp. 1 -18). 17 �2013 The Plaintiff on November 7, 2011 signaled by email to Mr. Bentley that, based on his reading of § 10 -3 -5, he would enforce any legal options available to him including, but not limited to, petitioning the Johnson County District Court for a Writ of Mandamus: if the application process was not conducted by the City Manager's Office for 2012. Mr. Bentley responded to the Plaintiff by email November 9, 2011 and stated that he had conferred with the City Attorney and that the City Manager's Office had decided to conduct the application process after all. He informed the Plaintiff that he could submit an application and attached a blank, application form to the email. He encouraged the Plaintiff to apply. (Original Petition ¶ 26, 27; Affidavit of Anthony Browne ¶ 11; Supplemental Return pp. 1 -18). On or before January 31, 2012, the Plaintiff timely submitted an application for a permit to operate a mobile vending unit on City Plaza on behalf of Hillery's BBQ, which has operated three BBQ restaurants in Illinois and Wisconsin for over 30 years. The Plaintiff timely hand delivered the application to Adam Bentley of the City Manager's Office prior to January 31, 2012. The application contained three years of previous health department records from Lake County Illinois granting temporary use permits to Hillery's BBQ for its mobile vending units. The application met the requirements contained in § 10- 3- 5(A)(3)(a) -(p). (Original Petition ¶ 30; Affidavit of Anthony Browne ¶ 12; Affidavit of Adam Bentley ¶ 4; Defendants' Statement of Undisputed Facts ¶ 1). In The Plaintiff received a denial letter March 13, 2012 written by Adam Bentley which read: "This note is to inform you that based on our evaluation; your cart was not chosen. We will hold your application and evaluate it further in the event one of the approved vendors is unable to operate for any reason..." The letter did not contain the reasons for the denial. (Original Petition ¶ 31; Affidavit of Anthony Browne ¶ 13; Affidavit of Adam Bentley ¶ 9; Defendants' Statement of Undisputed Facts ¶ 7; Return pp. 26). After a series of emails between the Plaintiff and the City Manager's Office, Management Intern Simon Andrew emailed the Plaintiff March 15, 2012 and stated the reasons for denial were: "... As there are only 6 permits available, the most important factor in the review process is prior satisfactory experience with the City of Iowa City. The six permits that were approved are operated by vendors that were permitted on City Plaza last vending season and are in good standing with the City." Mr. Andrew also stated that six permits were issued to: 1) Aladdin 2) George's Gyros Q & P Ventures LLC /Mark Paterno & Pete Johnson] 3) Marco's Grilled Cheese Q & P Ventures LLC /Mark Paterno & Pete Johnson] 4) Pedro's Taco [formerly Nacho Taco, acquired 2012 by J & P Ventures LLC /Mark Paterno & Pete Johnson] 5) Pop's Italian Beef 6) CorNroC. In response to further email inquiries by the Plaintiff into the scoring method used, for the first time, Mr. Andrew submitted by email, also on March 15, 2012: 19 AUG -6 CItf "The application scoring process includes representatives from the City Manager's Office, Housing and Inspection Services, and the Parks & Recreation Department. A copy of the scoring guide is attached." The score guide was simple and contained this formula to determine applicant's scores: 1) Previous Experience: History of satisfactory cart operation by the owner /operator of this cart (20 point scale) a. Greater than four years' satisfactory operation: 15 -20 points b. One to four years satisfactory operation: 10 -14 points 2) Citations: Number of citations received by the cart scored on this application during the previous year of operation (10 point scale) a. Zero citations: 10 points b. Each citation: deduct one point. For more serious violations, two points may be deducted c. New carts receive the full ten points 3) Maintenance/ Safety: [Existing carts: maintained to initial standards; New carts: meeting all expectations /requirements of the application] (10 point scale) a. Review photos, descriptions, correspondence/ citation history b. No maintenance/ appearance issues: 8 -10 points c. Minor maintenance concerns: 5 -7 points; Major concerns: < 5 points Mr. Simon also provided these score results from the 2012 application process: 1) Marco's Grilled Cheese: 39.75 2) Georges' Best Gyros: 39.5 3) Pop's Italian Beef: 36.75 4) Pedro's Taco: 34.75 5) Aladdin Pitas: 32 6) The CorNroC: 27.5 7) Hillery's BBQ: 21.5 8) AJ's To Go: 17.75 This was the first time the Plaintiff was notified a "score guide" existed and would be used to determine which applicants would receive permits. (Original Petition ¶ 34, 20 35, 36, 37; Affidavit of Anthony Browne ¶ 13, 14; Affidavit of Adam Bentley ¶ 10; Return pp. 1 -109; Supplemental Return pp. 1 -18). March 19, 2012 at 12:13PM, the Plaintiff timely appealed the denial by City Manager's Office of his application to operate a mobile vending unit in City Plaza by filing an appeal with the City Clerk. Also on March 19, 2012, but after the Plaintiff filed his appeal, Adam Bentley sent the plaintiff an email containing a PDF of the scores all applicants received in the 2012 application process for each category, by judge, with judges names redacted. The scores contained in the PDF revealed to the Plaintiff, for the first time, that the four judges gave the Plaintiff's proposed mobile vending unit 10, 0, 0, and 0, out of 20, for Previous Experience for an average of 2.5 in this category. The Plaintiff received an average score of 10 for the category Citations and 9 for Maintenance /Appearance. The Plaintiff therefore received a final score of 21.5 out of 40 points, ranking seven out of eight applicants. The City Clerk placed the appeal on the City Council's March 20, 2012 formal meeting. (Original Petition ¶ 39, 40, 41, 42; Affidavit of Anthony Browne ¶ 15; Affidavit of Adam Bentley ¶ 11; Defendants' Statement of Undisputed Facts � 8; Return pp. 111- 156; Supplemental Return pp. 1 -18). March 20, 2012, Adam Bentley represented the City Manager's Office at the Iowa City Council regarding the appeal. The Plaintiff was present also. Video of the council meeting was taken. The Plaintiffs principal arguments on appeal were that 21 AUG 11 6 M14 the City Manager's Administrative Rules regarding "seniority," and their application to the Plaintiff specifically exceeded the authority provided by ordinance § 10 -3 -5 and therefore violated the Procedural Due Process Clause. The Iowa City Council voted 5 -1' to affirm the City Manager's Office's denial of the Plaintiff's application for a mobile vendor permit. (Original Petition ¶ 43, 44, 45; Affidavit of Anthony Browne ¶ 16; Affidavit of Adam Bentley ¶ 12, 13, 14; Defendants' Statement of Undisputed Facts ¶ 8, 9, 10; Return pp. 111 -156; Supplemental Return pp. 1 -18). ARGUMENT I. THE DISTRICT COURT ERRED WHEN IT ANNULLED THE PLAINTIFF'S WRIT OF CERTIORARI. A. Preservation of Error The Plaintiff filed his original petition April 12, 2012 and alleged pursuant to Iowa R. Civ. P. #1.1401 in Count I that the Defendants acted illegally in the 2012 application process for mobile vendor permits pursuant to § 10 -3 -5. (Original Petition, B. CLAIMS, I.). The original petition was filed within thirty days of the denial of Plaintiff's appeal before the Iowa City Council of the denial of his application for a mobile vendor permit and was therefore timely pursuant to Iowa R. ' Matt Hayek Mayor (At- Large) absent; Jim Throgmorton (District C) voted to reverse; Connie Champion (District B), Rick Dobyns (District A), Susan Mims Mayor Pro Tern (At- Large), Terry Dickens (At- Large), Michelle Payne (At- Large) voted to deny 22 Civ. P. #1.1402(3). May 5, 2012, the Johnson County District Court issued the writ, ordered the Defendants to file a Return, ordered the parties to brief the issues, and scheduled oral argument. The Plaintiff alleged in his Writ of Certiorari brief filed June 26, 2012 that the Defendants' Administrative Rules violated the Procedural Due Process Clauses of the US and Iowa Constitutions, were not in accordance with ordinance § 10 -3 -5, and were otherwise unreasonable, arbitrary, and capricious. The Defendants filed a brief in Resistance July 10, 2012, denying the claims. The Johnson County District Court annulled the Writ of Certiorari September 20, 2012. Specifically, the District Court ruled that pursuant to State v. Dillard, 756 N.W.2d 207 (2008), it could find no independent source, such as state law, that provided the Plaintiff with a protected property interest and, hence, the Plaintiff could not meet the first prong of MaMews a Fadridae, 424 U.S. 319 (1976). The District Court ruled the Plaintiff's Procedural Due Process claim must fail for that reason. The District Court also held the Defendants acted in accordance with the ordinance and their actions were not unreasonable, arbitrary, or capricious. On Oct. 1, 2012, the Plaintiff filed a Motion to Enlarge or Amend pursuant to Iowa R. Civ. P. #1.904(2). The Plaintiff sough to expand his argument that his property interest consisted of license to obtain "substantial profits," and additionally argued that ordinance § 10 -3 -5 created a statutory interest in real property. The 23 r UC r 6 Zll Plaintiff additionally asked the court to readdress his claim that the Administrative Rules were not in accordance with ordinance § 10 -3 -5 and were otherwise unreasonable, arbitrary, and capricious. The Plaintiff finally asked the court to amend its factual determination that: `Plaintiff asserts that while Defendant has indicated that the "seniority requirement" is one of the most important factors in determining whether to issue a permit (essentially because Defendant will have had a good working relationship with current vendors and will know what to expect from vendors already holding permits), Plaintiff is at a disadvantage in obtaining a permit because he will lose points in the process due to his lack of "seniority" points.' The Plaintiff alleged and proved that the Defendants admittedly used seniority as the sole factor to award points in this category, the heart of the issue, and the Plaintiff requested the Court to accordingly take judicial notice of this fact. The Defendants' filed a resistance to the Plaintiffs Motion to Enlarge or Amend on Oct. 10, 2012 and on Oct. 17, 2012 the Plaintiff filed a Reply to the Defendants' Resistance. Judge Turner denied the Plaintiffs Motion to Enlarge or Amend Oct. 31, 2012. The judgment was not final and Count II remained. The parties filed Motions for Summary Judgment on Count IL On Mar. 5, 2013, Judge Turner granted Defendants' Motion for Summary Judgment and denied the Plaintiffs Cross -Motion for Summary Judgment. In the District Court's Mar. 5, 2013 Ruling, the court adopted its findings from the certiorari ruling and expanded its Ruling by also holding that Haxkeye Commodity Promotions, Inc. P. Vilsack, 486 F.3d 430 (2007) 24 t�f1( ' supported a finding that the Plaintiff had no property interest. The District Court also reiterated its findings that the Administrative Rules were consistent with the ordinance and were not unreasonable, arbitrary, or capricious. The Plaintiff timely appealed the final judgment April 3, 2013, thereby preserving these issues for appellate review. B. Standard of Review Certiorari actions in the district court are proper when an inferior board or tribunal, exercising judicial functions, exceeds its authority or otherwise acts illegally. Iowa R. Civ. P. #1.1401. An illegality is established if the tribunal has not acted in accordance with a statute; if its decision was not supported by substantial evidence; or if its actions were unreasonable, arbitrary, or capricious. Perkins v. Bd. of 'SiOen)isors, 636 N.W.2d 58, 64 (2001). The Iowa Supreme Court's review of a district court certiorari ruling is generally at law. Iowa R. Civ. P. #1.1412 (stating appeal from a district courts judgment in a certiorari proceeding is "governed by the rules of appellate procedure applicable to appeals in ordinary- civil actions "). The Iowa Supreme Court is bound by the findings of the district court, if they are supported by substantial evidence in the record. Perkins at 64. Evidence is substantial when "a reasonable mind would accept it as adequate to reach a conclusion." Id (citation omitted). The exception to this is that Iowa appellate courts review constitutional challenges de novo. Id.; Seegenerally State v. Cullison, 227 N.W.2d 121 (1975). 25 AUG 6 201.1 C. Argument 1. Introduction to Street Food Street food is ready to eat food or drink sold in a street or other public place, such as a market or fair, by a hawker or vendor, often from a portable stall.' While some street foods are regional, many are not, having spread beyond their region of origin. Most street foods are cheaper on average than restaurant meals. According to a 2007 study from the Food and Agriculture Organization of the United Nations, 2.5 billion people eat street food every day'. 2. Street Food's History in the United States During the American Colonial period, street food vendors sold "pepper pot soup" (tripe) and "oysters, roasted corn ears, fruit and sweets," as oysters were a low priced commodity until the 1910s when overfishing and pollution caused prices to rise'. Many women of African descent made their living selling street foods in America in the eighteenth and nineteenth centuries; with products ranging from fruit, cakes and nuts in Savannah, to coffee, biscuits, pralines and other sweets in 'Street Foods, Artemis P. Simopoulos, Ramesh Venkataramana Bhat, Karger Publishers, 2000, pp. vii. 3 Spotlight.• School Children, Street Food and Micronutiient Deficiencies in Tan .Zania, Food and Agriculture Organization of the United Nations, Rome, Italy, February 2007, htrl�: / / ti�w�i..fao.org /a,g /1�7agazine /0102sp 1.ht�n a Good Food for Little Money: Food and Cooking Among Urban Wlorking -class ..., Katherine Leonard Turner, University of Delaware, Spring 2008 26 New Orleans'. In 1707, after previous attempts to restrict their operating hours, street food vendors were banned completely in New York City. Eventually, New York City allowed street food vending to resume, but famously in 1938 closed down Paddy's Market, an area known for its manually - propelled pushcart street food vendors in Hell's Kitchen, to make way for the construction of the Lincoln Tunnel'. Street food vendors have traditionally been encouraged by governments, but have historically generated anti - sentiment from brick and mortar restaurants, with or without sidewalk cafes. These brick and mortar restaurants routinely have formed political blocks that seek to compete with mobile vendors for sales and competitive access to the public right-of-way.' 3. Street Food in the United States Today In modern city codes throughout the United States, street food hawkers or vendors are usually called "mobile vendors." Some American cities, such as New York City and Chicago, have a long history with mobile vendors, while other are just beginning to allow mobile vending. In 2011, Boston amended their city code to ' African American Foodways: Explorations of History and Culture, University of Illinois Press, Dec 29, 2008 ' Street Foods, Simopoulos and Bhat, 2000 'New York City Street Vendors, Columbia University Graduate School of Architecture, Planning, and Preservation, Rembert Browne et al., Spring 2011, at pg. 10. 8 New York City Street Vendors, (2011) at pp. 4, 10, 11, 19, 29, 54, 55, 58. 27 regulate mobile vendors and stated the following in the preamble of the ordinance they passed: CITY OF BOSTON IN THE YEAR TWO THOUSAND ELEVEN An Ordinance Promoting Economic Development and the Food Truck Industry in the City of Boston WIHEREAS, The food service industry may be the world's most widespread industry, including restaurants establishments such as fast -food eateries, formal dining and mobile trucks; and, WIHEREAS, According to the U.S. Bureau of Labor Statistics, the food services and drinking places industry ranks among the Nation's leading employers with nearly 10 million wage and salary jobs; and, WHEREAS, Recently, mobile food units have become extremely popular and profitable in urban settings such as Los Angeles, New York, Houston, Philadelphia, San Francisco, Atlanta, Seattle, Miami, Austin, Portland and Washington D.C. to name a few; and, WHEREAS, The mobile food industry has the unique potential to create new employment opportunities, small business growth and favorable conditions for culinary entrepreneurs in Boston and its neighborhoods; and, WHEREAS, According to the National Restaurant Association, there is an increasing demand, particularly among people 18 to 44, for freshly prepared, restaurant - quality food that can be had quick and cheap; and, WHEREAS, Research has revealed that cities around the country have, at best, made incremental strides in regulating the complexities of the mobile food vendor industry, including efforts to find solutions to problems created by the industry, such as issues around parking, traffic and waste disposal; and, WII-IEAEAS, Vendors in the mobile industry have faced complex rules and regulations in other communities, the following language is being set forth to streamline administrative processes, effectively work with the industry and secure the highest quality of life for all Bostonians; NOW, Be it ordained by the City Council ofBoston, as follows that the City of Boston Code be amended by adding the following ordinance... City of Boston Municipal Ordinance 2011 C. 5, Mobile Food Trucks, 4/6/2011. From the preamble of Boston's 2011 ordinance, one can see that cities across America are finding that mobile vendors are a valuable asset to modern communities. The term "mobile vending unit" has various names and definitions in different jurisdictions, but every definition can be reduced to denote: manually propelled units, motorized or animal propelled units, and location -based units. Examples of manually propelled units are food, beverage, or dessert pushcarts. Examples of motorized or animal propelled units include food or beverage trucks, trailers, or horse - driven units. Examples of location -based units are food or beverage carts, trailers, stands, tents, or kiosks. The manually propelled, motorized, or animal 9 See Code of Ordinances Champaign, Illinois § 25 -46; Municipal Code of Chicago 4 -8 -010; Code of Ordinances Columbus, Ohio § 573.01(a) and 523.01(b); Code of Ordinances City of Houston § 20 -18 and 40- 261(b); Iowa City Code § 10 -3 -1; Code of Ordinances Los Angeles County § 8.04.138 and 8.04.200; Madison Wisconsin General Ordinances § 9.13(6) (n) (6), (a) and (b); Administrative Code of the City of New York City § 17- 307(b); Code of Ordinances Urbana, Illinois § 17 -1; Washington D.C. Code § 37- 131.10; Code of Ordinances West Lafayette, Indiana § 83.01 29 AUG - 6 2013 propelled units are usually permitted to vend in any acceptable public place not otherwise restricted by traffic, parking, fire, or other municipal regulations, while the location -based units are usually given a dedicated place on public property to vend. The location -based units are nevertheless "mobile" and are usually moved to storage daily, but not always. Some location -based units are semi- permanent and can remain in place for months or years. 4. § 10 -3 -5 (USE BY MOBILE VENDORS) (2012) Mobile vendors do not have a vested right to vend on public property and regulations that are rationally related to the public welfare and safety are valid to enact for Iowa City, or any other city in the United States. New Orleans v. Dukes, 427 U.S. 297, 304 (1976). Both the District Court and the Defendants argued a substantive due process claim on behalf of the Plaintiff several times throughout the proceedings below, though he never pled one and has insisted this was always a procedural due process issue. Pursuant to the Iowa Constitution's Home Rule Amendment, Iowa City could ban mobile vendors completely. However, like many other cities in the United States, Iowa City has a long history with mobile vendors. In 1982, Iowa City passed its first ordinance to allow mobile vending. See ORDINANCE NO. 82 -3058. Most of the text in the original ordinance remains in the 2012 version that is the subject of this appeal and is currently codified as Iowa City Code § 10 -3 -5 (USE BY MOBILE VENDORS) (2013). The Plaintiff would like 30 AUG :,;, to point out that Iowa City has amended the ordinance in response to this petition, so the Plaintiff will be discussing the 2012 version of the ordinance contained in the Return and will hereinafter refer to it as § 10 -3 -5, unless he notes otherwise by year designation. (Return pp. 153 -156). To be a mobile vendor in Iowa City, a person must file an application for a permit with the City Manager on or before January 3111 of the calendar year in which the person desires to be a mobile vendor. § 10- 3- 5(A)(1)(a) and (c), read in conjunction with § 10 -3 -1 (DEFINITIONS) and § 10 -5 -2 (DEFINITIONS). Any person can file an application and become an applicant. Id. The applications must meet the requirements set forth in § 10- 3- 5(A)(3)(a) -(p). Permits last one year. § 10- 3 -5 (A) (1) (b). To continue to be a mobile vendor over multiple years, permittees from the previous year must become an applicant as well. Importantly, the ordinance offers no right to renewal to any permittee. Board of Regents a Roth, 408 U.S. 564, 578 (1972); Movers Warehouse v. City of Little Canada, 71 F. 3d 716, 720 (1995). The ordinance directs that the City Manager "shall issue a permit if the following conditions have been met..." § 10- 3- 5(B)(1). The ordinance goes on to list requirements a -n. § 10- 3- 5(13)(1)(a) -(n). Requirement (a) is that Iowa City have one of the six MOBILE VENDING LOCATIONS available, which is always true at the beginning of each calendar year, since all existing permits naturally expire at the end of each calendar year. From January 1st of each calendar year until the City Manager 31 AUG -- 6 ?013 issues permits within sixty days of January 31`t, all mobile vending locations are available. Requirement (b) requires Iowa City to determine if the "applicant's proposed mode of operation will not impede the free flow of pedestrian traffic along the public right of way or in or out of adjacent properties." Requirement (c) requires the applicant to sign an agreement "to operate the applicant's business only at assigned mobile vending locations." Requirement (d) directs that "the dimensions of the applicant's vending cart shall not exceed a size of four feet (T) wide by nine feet (9') long by eight feet (8') high." Requirement (e) requires the applicant to demonstrate he or she "has adequate storage for the mobile vending cart off the city plaza or public right of way." Requirement (f) requires the applicant to prove he or she "has obtained all necessary permits required by the county department of health." The county health department inspects the operation and requires the mobile vendor to acquire or commission a "commissary kitchen" to clean, supply, and otherwise support the mobile vending unit before issuing a health permit. Requirement (g) requires the City Manager to ensure that "all applicable fees10 have been paid" by the applicant. Requirement (h) requires Iowa City to verify the application "is fully completed and executed." Requirement (i) requires the applicant to sign an agreement to indemnify Iowa City. Requirement (j) requires the applicant 10 The fee is $1000.00; $15.00 per month for electricity. Administrative Rules (Rev. 05- 2011), IV. FEES AND CHARGES 32 U(5 ; , to provide a certificate of insurance for the metes and bounds of the MOBILE VENDING LOCATION. Requirement (k) requires Iowa City to verify the application contains no material falsehood. Requirement (1) requires Iowa City to verify "the applicant has not damaged city property, and if the applicant has, the damage has been paid in full, and the applicant has paid all other outstanding and unpaid debts to the city." Requirement (m) requires Iowa City to verify "the applicant has complied with applicable laws concerning the sale or offering for sale of any goods or services." Finally, requirement (n) requires Iowa City to verify that "the use or activity intended by the applicant is not prohibited by law." If the applicant meets all of these requirements, the City Manager must issue a permit that contains the permittee's name, telephone number, and address; the permittee's MOBILE VENDING LOCATION; and "such other information that the city manager or designee finds necessary for the enforcement of this chapter." § 10 -3- 5(B)(2)(a) -(d) read in conjunction with § 10- 3- 5(B)(1). It can then only be revoked for cause. § 10- 3- 5(E)(1)(a) -(0. It otherwise naturally expires at the end of each calendar year (December 31St). Nevertheless, the ordinance also insists that no more than six permits may be issued each calendar year by the City Manager. § 10- 3- 5(2)(a). The ordinance additionally authorizes the City Manager to "establish administrative rules not inconsistent with any ordinance to carry out the provisions of this chapter. A copy of 33 AUG -- 6 2013 said rules shall be on file with the city clerk." § 10- 3 -5(G). Therefore, § 10- 3- 5(2)(a), read in conjunction with requirement (a)11 of § 10- 3- 5(B)(1), demands that each year the City Manager must issue permits to six or fewer applicants who meet requirements (a) -(n) of § 10- 3- 5(B)(1). The City Manager is without discretion to deny the applications and is required by the ordinance to issue the permits. However, the ordinance is silent on what to do if more than six applicants who meet the requirements apply. 5. § 10- 3 -5(G) Administrative Rules (Rev. 05 -2011) Initially, the Plaintiff would like to point out that, like the ordinance, Iowa City has since amended the Administrative Rules in response to this petition. The Plaintiff will be referring to Administrative Rules (Rev. 05- 2011), which are contained in the Return, unless he notes otherwise. (Return pp. 147 -151). Administrative Rules (Rev. 05 -2011) used by the City Manager in this case contains a section II named Requirements. The verbiage is the same as § 10 -3- 5(B)(1)(a)- (n)12, but adds the following sentence: "Note that because there are only six permits available, permits are granted based on seniority13." The Administrative " "A mobile vending location is available which will not interfere with the free movement within the emergency/ service lane." § 10- 3- 5(B)(1)(a). 12 The Administrative Rules (Rev. 05 -2011) also add requirement "(o) Mobile vendor may sell any type of food or beverage." This is immaterial. 13 The full text of the paragraph is: 34 ?JC Rules do not define seniority in any way. Though the Administrative Rules do not state so and it is not on file with the City Clerk, the City Manager has developed an unpublished "score guide" that is given to four judges to calculate a total score for each applicant, if the number of eligible applicants exceeds six. After calculating the score, the City Manager issues permits to the six highest scoring applicants. (Return pp. 120). Though the document is titled "Mobile Vending Cart Application Scoring," the City Manager refers to it as the "score guide." The score guide uses previous experience (twenty points), citations (ten points), and maintenance /appearance (ten points) for a potential maximum total score of forty points. Mobile Vending Cart Application Scoring document, Criterion. New applicants automatically get ten points for citations. See Mobile Vending Cart Application Scoring, Description for Citations. A plain reading of the Mobile Vending Cart Application Scoring, Description for Previous Experience would suggest a new applicant potentially could get up to twenty points for previous experience. The dispute in this case is centered here on the scoring for Previous Experience. "Note that because there are only six permits available, permits are granted based on seniority. If the applicant is not a natural person (for example, a partnership, an LLC, or a corporation) and if the applicant has had a mobile vendor permit previously, the applicant will not retain its seniority if there has been a substantial change, as determined by the City, in the stock ownership, membership interest, or partnership distribution." 35 AUG -- . 6 Prior to the judges receiving the score guide, the City Manager pre - populates the first four fields named: name of the cart, owner's name, number of years of experience, and number of citations. (Return pp. 22 -25; 31 -34; 43 -46; 58 -61; 69 -72; 80 -84; 95 -98; 105 -108). The way the City Manager calculates the field "number of years of experience" prior to scoring is not detailed in the ordinance, Administrative Rules or score guide. After it is pre - populated with the first four fields, it is given to four judges: two from the City Manager's Office, one from the Parks and Recreation Department, and one from Housing and Inspection Services. The four judges grant total scores to each applicant in each category and the City Manager computes a total score, computed by averaging the four scores from the four judges, for each applicant. The City Manager then grant permits to the six highest average total scores. 6. Writ of Certiorari Should Have Been Sustained a. Defendants Administrative Rules Violated Plaintiffs Right to Procedural Due Process i. Procedural Due Process Standard When a state action threatens to deprive a person of a protected liberty or property interest, a person is entitled to procedural due process. Bowers v. Polk County Bd. of Supervisors, 638 N.W.2d 682, 690 (2002); Amend. XIV, § 1 of the U.S. Constitution; Article I, § 9 of the Iowa Constitution. Constitution. In analyzing a 36 r procedural due process claim, courts first must determine whether there is a protected liberty or property interest at stake. Id at 691. If a protected interest is involved, the court must determine what procedure is needed to protect that interest. .1d at 691. In doing so, the court must balance three considerations: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Id at 691 (quoting Mathews v. Eldridhe, 424 U.S. 319, 335 (1976); see also 3'or67* v. Iowa Disl. 0., 671 N.W.2d 482, 491 (2003)). ii. § 10 -3 -5 Creates a Protectable Property Interest Property Interest Standard The right to procedural due process does not exist in a vacuum. Rather, the Constitution endows individuals with protection against only the "deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property." Board of Regents v. Roth, 408 U.S. 564, 569 (1972). Thus, to determine whether the Plaintiff was unconstitutionally deprived of procedural due process first requires reviewing courts to ascertain whether the interest that the Plaintiff seeks to protect was indeed a cognizable property interest to which the Procedural Due Process Clause extends. The contours of putative property interests "are not created 37 AUG - 6 1013 by the Constitution. Rather they are created and their dimensions are defined by existing rules and understandings that stem from an independent source such as state law...." Id. at 577. Thus, the Plaintiff must predicate his claim to a constitutional property interest not on the metaphysics of the Procedural Due Process Clause, but on the concrete provisions of the Iowa City Code and the application of Iowa stare decisis to property law. Bishop v. Food, 426 U.S. 341, 344 -345, n.7 (1976); see also Movers Warehouse, Inc. v. City of Little Canada, 71 F.3d 716, 718, footnote 3 (1995) (A municipal ordinance is a form of state law that can create a protected property interest...). In order to possess a constitutional property interest, "a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it." Id. at 577. Therefore, the Plaintiff must prove that he procedurally had an entitlement to a permit. In addition, the Plaintiff must also prove that the permit is a property interest with the meaning of the Procedural Due Process Clause of the US Constitution. II. Entitlement to a Permit "The legislative intent that controls in the construction of a statute has reference to the legislature that enacted it...." In re Guardianship of Wiley, 34 N.W.2d 593, 596 (1948). The preamble of legislation is evidence of legislative intent and may be considered by reviewing courts. City of Des Moines v. Pub. Emp. Rel. Bd., 275 38 4 if 1 ,� [ Y � i i f ': '_ N.W.2d 753, 760 (1979). In 1982, the Iowa City Council enacted the first version of the current mobile vending ordinance. See ORDINANCE NO. 82 -3058. The intent of the 1982 Iowa City Council in regards to mobile vendors can be found in the last paragraph of § 9.1, Sec. 3. INTENT and it states: `The intent of the City Plaza Use Regulations is that private development within City Plaza is to be permitted sparingly and only for those proposals that meet the objectives stated above. It is not to be considered a "use by right. "' The relevant portion of the 1982 ordinance that deals with issuing permits is § 9.1, Sec. 10. CITY PLAZA USE PERMITS and it states the following: "The City Manager or his /her appointed designee may issue a permit to operate a mobile vending cart in the public right -of -way of City Plaza after careful consideration and assurance that the following conditions have or will be met..." The 2004 Iowa City Council recodified and renumbered the ordinance, moving § 9.1 (SECTION 10. CITY PLAZA USE PERMITS) to its current location in § 10 -3 -5. In ORDINANCE NO. 04 -4125, the 2004 Iowa City Council also changed the relevant intent of the City with regard to mobile vendors to: "WHEREAS, it is desirable that there be uniformity in the permitting process and specific criteria to guide and limit the discretion of city employees charged with granting or denying permits for uses of City property..." The text of the ordinance that deals with issuing permits was also changed by ORDINANCE NO. 04 -4125 to read: "...The city manager or designee shall issue a permit if the following conditions have been met..." 39 AUG -- 6: This is the text in the current, 2013 version of § 10 -3 -5 and applies to the Plaintiff in this case. The Defendants' counsel Assistant City Attorney Susan Dulek was instrumental in crafting ORDINANCE NO. 04 -4125 and participated in its planning, drafting, debate, and implementation. Furthermore, ORDINANCE NO. 04 -4125 not only changed the discretion for the issuance of permits for mobile vendors, it removed the discretion from the City Manager to deny permits for all uses 14 of public property owned by the City of Iowa City by directing that the City Manager "shall," rather than "may," issue permits. Many times in the past, the Iowa Supreme Court has stated that use of the word "shall," when addressed to public officials, is mandatory and excludes the idea of discretion. State P. Klawonn, 609 N.W.2d 515, 521 -522 (2000). Effectively, this means that if six or less applicants apply for a permit, the City Manager must issue permits to the six or fewer applicants, assuming they meet the requirements set forth in the ordinance. If there are more than six applicants, according to the Administrative Rules, the City " Use of "may" rescinded and replace with "shall" for issuance of all permits to use Iowa City public property for commercial, political, and other uses. See ORDINANCE NO. 04 -4125 at: § 10- 3- 4(B)(1) (shall issue temporary four -day permit to businesses abutting City Plaza for any commercial purpose); § 10 -3 -6 (shall issue annual permit for sidewalk retailing); § 10- 5- 7(G)(3) (shall promptly authorize placement of noncommercial and commercial objects and structures in City Plaza); 10- 5- 7(H)(1)(e) (shall grant permit to use amplified sound); § 10- 1 -4(A) (shall grant permit for public parade, assembly, picketing, or use of park facilities); § 10 -11 -3 (shall grant authorization for stall or grilling site at Farmer's Market) M Manager must issue permits to the six applicants with the highest average total scores from the judging process. Therefore, it is clear that procedurally the Plaintiff had an entitlement to a permit in this case, if his score was one of the six highest average totals. III. Permit is Actually a Lease Though the ordinance refers to it as a permit, the instrument is actually a lease. It is often difficult to distinguish between a license, profit a prendre, easement, and lease. See 49 Am.Jur.2d Landlord and Tenant §5, 45 -47 (1970); 25 Am.Jur.2d Easements and Licenses § 2, 417 -19, § 3, 419, § 123, 525 -26 (1966). The title of an instrument is not controlling; the intent of the parties is the determining factor. Paul P. Blakely, 51 N.W.2d 405, 407 (1952). It is axiomatic that a license, profit a prendre, easement, and lease are all property interests of the licensee, grantee, dominant estate, or lessee within the meaning of the Procedural Due Process Clause, except in the case of a license, under certain conditions, which the Plaintiff will show, do not apply here. Additionally, § 10 -3 -5 and the facts of this case clearly demonstrate that the property interest involved in here is not a profit a prendre or easement. Therefore, the Plaintiff will begin to focus his argument on licenses and leases, only passing on profit a prendre or easements as necessary. A lease conveys a present interest in real property for the period specified. W. Page Keeton, Prosser and Keeton on the Law of Torts § 13, at 67 (5th ed. 1984). 41 Black's Law Dictionary defines a lease as "a contract for exclusive possession of lands... for terms of years ..., usually for a specified rent or compensation." Black's Law Dictionary 889 (6th ed. 1990); State v. Mann, 463 N.W.2d 883, 884 (1990). "The criterion seems to be the right to the possession of the land, and if such right is not conferred, the transaction is to be deemed a license, profit, or easement." 49 Am.Jur.2d Landlord and Tenant § 5, at 46. A license in real property "is an authority or permission to do a particular act or series of acts upon the land of another." Resnick P. City of Ft. Madison, 145 N.W.2d 11, 14 (1966); see also Black's Law Dictionary 920. A license also involves the exclusive occupation of the property, but only "so far as is necessary to do the act, and no further, whereas a lease gives the right of possession of the land, and the exclusive occupation of it for all purposes not prohibited by its terms." 49 Am.Jur.2d Landlord and Tenant § 5, at 46; see also 25 Am.Jur.2d Easements and Licenses § 123, at 525 -26, § 125, at 528; See generally Lee v. North Dakota Park Serv., 262 N.W.2d 467 at 470 -473 (1977). Thus, a license is merely a "privilege to use land in the possession of another." Resnick, 145 N.W.2d at 14. It is generally personal, revocable, and unassignable, but not always. Paul, 51 N.W.2d at 407. The Paul Court stopped short of clarifying the meaning of "personal, revocable, and unassignable, but not always," as the case could be disposed of without reaching the question. The Court in IN RE PRIMARY ROAD NO. IOWIA 141,114 N.W.2d 290 (1962) did in fact 42 AW" 6 ;;o reach this question and defined exactly if and when a license can be considered a property interest within the meaning of the Procedural Due Process Clause. If a license can be revoked at will then the licensee has no property interest. Id. at 294- 296; See also Simonsen P. Todd, 154 N.W.2d 730, 732 -737 (1967). If however, the license can only be revoked for cause; is irrevocable or perpetual; has consideration paid for it; causes cash to be expended in reliance thereon; confers a possessory interest the licensee can enforce in equity against third parties; or otherwise grants the licensee a significant degree of possession, control and interest of or in the real property, then the licensee does in fact have a property interest within the meaning of the Procedural Due Process Clause. Paul at 407 -408; IN RE PRIMARY ROAD NO. 10VA 141 at 294 -295; Simonsen at 732 -737. Turning to § 10 -3 -5, the history of § 10 -3 -5 can again help us quickly resolve the issue of whether a permit under this ordinance is a lease or license, and if a license, if it still confers a property interest to the permittee. The text of the 1982 ordinance described the permit as follows: "All lease applications for mobile vendor operations must be received at least four weeks before the proposed start of the lease." Iowa City Code § 9.1, Sec. 10 (A)(1982). Another portion of the 1982 ordinance says "...When a mobile or temporary use is allowed, it is understood that this authorization does not extend to Zone 1 or Zone 2 areas which are already leased for other purposes e.g., mobile vending carts may not approach patron seated in a 43 AU r h. sidewalk cafe..." § 9.1, Sec. 9 (A)(1982). Finally, the 1982 ordinance, which then allowed for automatic renewal, had this section in § 9.1: SECTION 13. RENEWAL AND TERMINATION A. Permits for permanent construction shall be for the term specified in the lease agreement, or until terminated or revoked by the City Manager pursuant to the lease agreement. B. Otherpermits for specific locations are for one year, then renewable automatically for one additional year, provided the permittee operated at least three (3) months during the first year. C. Permits are non - transferable. Leases may be assigned or sublet only upon prior written approval of the City Council. D. Upon revocation or termination of any permit, the permittee shall be responsible for removing the structure and restoring the permit area to its condition prior to the issuance of a permit. § 9.1, Sec. 9(A)(1982). While the 2004 ordinance removed the above cited text, it is clear that the intent of 1982 ordinance was to use "permit" and "lease" interchangeably. More importantly, while the 2004 ordinance removed this text, the 2004 ordinance didn't materially change the intent of the 1982 ordinance to establish a lease of public property with applicants for mobile vendor permits. Prior statutes may be examined, and mere differences in words or arrangement should not generate an inference of legislative intent to change the former rule. Mowrey P. Schuh, 296 N.W. 822, 823 -24 (1941). A revision will not be construed as altering a particular statute absent a clear, unmistakable legislative intent. Kelly P. Brewer, 239 N.W.2d 109, 114 (1976). When a revised statute is ambiguous or susceptible of two constructions, reference may be made to prior statutes for the purpose of ascertaining intent. Hanover Insurance Co. v. Alamo Motel, 264 N.W.2d 774, 778 (1978). The above quoted text from the 1982 ordinance clearly establishes the permit is really a lease. § 10 -3 -5 also has ample language to demonstrate that Iowa City as lessor intends to forge a lease with applicants for a permit. Pursuant to § 10- 3 -5(B) (2) (c), the City Manager must assign the permittee the metes and bounds of a "mobile vendor location" within City Plaza. Requirement § 10- 3- 5(B)(1)(c) insists the applicant must agree to operate "only at assigned mobile vending locations." Clearly, these allow the permittee redress in equity against trespass by third parties of the mobile vending location, a quality of a lease. Requirement § 10- 3- 5(B)(1)(i) requires the applicant to indemnify Iowa City. While a lessee is always liable to business invitees for torts that occur on the leased property, normally, a lessor is not. Van Essen P. McCormick Enterprises Co., 599 N.W.2d 716, 719 (1999). However, as an Iowa municipal corporation, Iowa City has an additional duty under Iowa Code 362.12(2) to "keep all public grounds, streets, sidewalks, alleys, bridges, culverts, overpasses, underpasses, grade crossing separations and approaches, public ways, squares, and commons open, in repair, and free from nuisance." § 362.12(2) then statutorily trumps the normal liability of lessor and lessee and Iowa City could 45 406 ?z,, nevertheless be held liable for torts that occurred within the metes and bounds of a mobile vending location. This is an important term of the permit in that it requires Iowa City to transfer possession and responsibility for public safety of the metes and bounds of the mobile vending location to the permittee, another quality of a lease. Requirement § 10- 3- 5(B)(1)0) requires the applicant to provide the City Manager with a certificate of insurance for the metes and bounds of the mobile vending location. Insurance could not be obtained by an applicant, unless the applicant had an interest in the real property to be insured. These are all traits of leased real property. 10- 3 -5(D) additionally provides that "the sale, transfer, or assignment of a mobile vending permit is expressly prohibited." An assignment is a transfer to another of the whole of any real property or right therein. 6A C.J.S. Assignments § 2 (1975). An assignment and a transfer are therefore one and the same. In an assignment of a leasehold interest, a tenant transfers its entire interest in the unexpired lease term to the assignee. A conveyance of a portion of a leasehold interest is a sublease. In a sublease, less than all of the leasehold estate of the tenant is transferred to the sublessee, which means the landlord- tenant relationship between the landlord and the original tenant, including both privity of estate and privity of contract, remain intact. See Assignments and Subleases, II(A) (2), Johnson & Hardin LLP (2008). Both assignments and subleases are usually made for consideration, but 46 not always. So then, § 10- 3 -5(D) which prohibits "the sale, transfer, or assignment of a mobile vending permit" necessarily implies that, absent the prohibition, the permit could indeed be assigned or sublet pursuant to long established principles of property law, with or without consideration paid to the permittee. To explain it another way, a provision in a lease that prohibits conveyance assumes that, absent the prohibition, the property could ordinarily be conveyed to a third party. The prohibition against assignment or sublease then only strengthens the case that the permit is a lease. Additionally, despite this prohibition, the permit would pass to the permittee's devisee under a will or to the permittee's heirs who succeed him as provided by the probate code. Iowa Code § 633.350. This provision is effectively a termination -on- assignment clause, wliich are commonly found in lease agreements. Snyder v. Bernstein Brothers, 208 N.W. 503, 505 (1926). Lastly, while this provision is contained in the ordinance, it apparently isn't enforced in practice. The permit for Nacho Taco was issued to josh Wachendorf in 2011. (Return pp. 47 & 48). In the 2012 application process involved here, the permit was transferred to J & P Ventures LLC with "Years of I l'xpericnce: > 8 Years ." (Return pp. 43 -46). The Defendants then, in practice, do not enforce this provision. The Defendants argued, and the District Court found as a matter of law, that the provision under § 10- 3 -5(D) that prohibits that the sale, transfer, or assignment of a mobile vending permit established the Plaintiff had no property interest; that the 47 permit creates a privilege, not a right; and that the permit "lacks the indicia of a property interest" pursuant to Hawkeye Commodity Promotion-, Inc. P. Vilsack, 486 F.3d 430, 440 (2007). This was an incorrect conclusion of law by the District Court. The license in HCP v. Vilsack was a "Touch Play" license, revocable at the pleasure of the Iowa Legislature. Licenses of this nature, for inherently illegal businesses such as gambling, tobacco, liquor, and others, are always revocable at will by government officials. Central States Theatre Corporation v. Sar, 66 N.W.2d 450, 455 (1954). In HCP v. Vilsack, the Eighth Circuit found that HCP had no property interest in the Touch Play license because the license was revocable at the will of the Iowa Legislature and statutorily unassignable. Additionally, many other forms of property are unassignable. The U.S. Supreme Court held that federal Social Security disability benefits are property rights in Mathew P. Eldridge, yet Social Security benefits cannot be assigned or transferred statutorily pursuant to 42 U.S.C. § 407.15 An historical analysis of 42 U.S.C. § 407 would certainly show that the U.S. Congress had been advised absent this prohibition, Social Security benefits could readily be bought and sold under common property law. Yet there is no statutory authority in the Social Security Act that would allow the United States to discontinue disability payments at " 42 USC § 407 (Assignment of benefits) (a) -- "The right of any person to any future payment under this subchapter shall not be transferable or assignable, at law or in equity..." 48 will. Assignability is only one of several factors to consider when ascertaining whether a license or other interest in real property confers a property interest within the meaning of the Procedural Due Process Clause. The District Court erred in using HCP v. Vilsack as authority, in whole or in part, to conclude that an Iowa City mobile vendor permit confers no property interest to the permittee. Changes to § 10 -3 -5 after the Plaintiff filed his original petition also demonstrate that Iowa City as lessor intends to forge a lease with applicants for a permit. The Defendants, in response to the Plaintiff petition, changed the ordinance by adding the following section: "If the city council decides to eliminate or reduce the mobile vending permit program, the city may terminate all permits upon one hundred twenty (120) day notice to the permittees." Iowa City ORDINANCE NO. 12 -4506 (2012); § 10 -3 -5 (A) (2) (e) (2013). This section was added by the Defendants in an attempt to make the permit revocable at the will of City Council. While this section may be invoked by the City Council at any time, it still only allows the permit to be terminated for cause. The permit can only be terminated if, and only if, all permits are revoked. Furthermore, the permit then only terminates after 120 days. This is merely another termination provision, which are commonly found in lease agreements for a wide variety of reasons, such as eminent domain. The Return in this case also supports the Plaintiff's argument that the permit is in fact a lease. J & P Ventures LLC has occupied the mobile vending location for 49 George's Gyros "between Martini's and Brother's... since 1990s [sic]." (Return pp. 101). J & P Ventures LLC has possessed the mobile vending location for Marcos Grilled Cheese "between Martini's and Brother's... since 2000 [sic]." (Return pp. 65). The fact that J & P Ventures LLC has occupied the metes and bounds of two mobile vending locations between Martini's and Brother's, the most traveled part of City Plaza by pedestrians, for one to two decades is evidence the permit is a lease agreement. Lastly, during the appeal before the City Council of the denial of the Plaintiff's application, City Manager Tom Markus's designee Adam Bentley referred to the permittees as "tenants" who "pay rent." (Return pp. 140). The legal filings of both the District Court and the Defendants also bolsters the Plaintiffs argument that the permit is in fact a lease. The Defendants counsel stated the following in her July 10, 2012 Writ of Certiorari Brief at pages 9 -10: `At the City Council meeting, the City Manager and Adam Bentley stated two reasons that the City takes into account seniority. One, venders [sic] who have already made an investment in the cart should be allowed to continue to vend if there have been no problems. (Record, Pp. 140, 146) Two, staff considers whether they have been a ",good tenant," in that they paid rent on time, cleaned up the area around the vending cart, and had not had any citations. (Record, Pp. 140, 146) Given the twin purposes, the seniority provision in the rules is reasonable' In the District Court's 9/20/2012 Ruling at page 3, the District Court found the Defendants' "...staff considers whether each permit holder has been a good tenant in 50 that they paid rent on time..." The use of the terms "tenant" and "rent" demonstrate both the Defendants counsel and the District Court viewed the pern ittees as lessees. Therefore, the Plaintiff argues the "permit" is actually a "lease." IV. Substantial Profits are an Interest in Property The permit under § 10 -3 -5 also creates a right to substantial profits. THREE KC P. Richter, 279 N.W.2d 268, 271 (1979); MRM, INC. v. City of Davenport, 290 N.W.2d 338,343 (1980). V. § 10 -3 -5 Creates a Protectable Property Interest In conclusion, the permit under § 10 -3 -5 is a lease. At the very least, it's a license that: cannot be revoked without good cause, has consideration paid for it ($1000), causes cash to be expended in reliance thereon (health dept. permit, insurance), confers a possessory interest the licensee can enforce in equity against third parties (sole use of assigned mobile vending location), and otherwise grants the licensee a significant degree of possession, control and interest of or in the real property defined by the metes and bounds of the mobile vending location in City Plaza. Alternatively or additionally, the permit under § 10 -3 -5 creates a right to substantial profits. Due to the mandatory language in the ordinance, the Plaintiff had a right to a permit. Hewitt P. Helms, 459 U.S. 460, 472 (1983). Therefore, a permit indeed confers to the permittee a property interest within the meaning of the Procedural Due Process Clause. 51 To the extent that the District Court found as a matter of law that "no independent source, such as state law... provides Plaintiff with a protected property interest regarding the issuance of a permit to operate a mobile vending unit" pursuant to State v. Willard and HCP P. Vilsack, the District Court was legally erroneous. The elaborate procedures detailed in 5 10 -3 -5 are clearly the source of Plaintiff's property interest in the real property defined by the metes and bounds of a mobile vending location and, or in the alternative, in the attempt to obtain substantial profits thereon. Additionally, the prohibition against assignment or sublease does not mean it "lacks the indicia of a property interest." iii. Administrative Rules Caused an Erroneous Deprivation of Plaintiff's Right to Vend Street Food at a Mobile Vending Location in City Plaza I. Standard to Assess Procedures Necessary to Protect Property Interests of U.S. Citizens The court must balance three considerations when assessing procedures necessary to protect the property interests of U.S. citizens: "First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirements would entail." Id at 691 (quoting Mathems v. Eld),idge, 424 U.S. 319, 335 (1976); see also Sorca v. Iowa Dist. 0., 671 N.W.2d 482, 491 (2003)). 52 4 lf t II. Private Interest of the Plaintiff Ordinance § 10 -3 -5 invites any person to apply for an annual permit to be a mobile vendor. The permit is a yearly "lease of right" of the metes and bounds of a mobile vending location offered by ordinance § 10 -3 -5 in perpetuity (each calendar year). Though the permit apparently allows any good except alcohol or tobacco to be sold from the mobile vending location, street food has traditionally been sold by past mobile vendors in Iowa City. The Plaintiff conservatively estimates that the permit would earn him a net profit of � per year vending street food, specifically Hillery's BBQ, home of the world famous North Chicago rib tips' III. Risk of Erroneous Deprivation of the Plaintiff's Right to a Mobile Vendor Permit Through the Use of the City Manager's Administrative Rules and the Probable Value of Additional or Different Procedural Safeguards As detailed extensively above, the Plaintiff, as well as any new applicant, and indeed permittees from the previous year, have a substantial right at stake in the outcome of the scoring process to determine which six applicants are issued permits, if more than six applicants apply for a permit in any given year. Clearly, § 10 -3 -5 doesn't distinguish between new applicants and applicants who are previous permittees. Therefore, consistent with parent ordinance § 10 -3 -5, the Administrative Rules must, at a minimum, provide all applicants with a path to permit. Any scoring htt4)s:/ www.faceb(--)ol�.coi.-ri/.hi.l.lervsbb.cI 53 mechanism in the Administrative Rules that did not provide a path to permit to all applicants would clearly violate both parent ordinance § 10 -3 -5 and the Procedural Due Process Clause. Any additional scoring safeguards that would ensure all applicants, at a minimum, had a path to a permit would suffice to remedy any constitutional infirmities. IV. Public Interest of the Defendants The Defendants claim the use of the "seniority rule" advances two important interests for the City: executively issuing permits to applicants who have obtained a permit in the past advances the public welfare and it protects the investment of the permittees. V. Balancing the Foregoing Three Factors, the Plaintiff's Procedural Due Process Rights Were Violated Since there were more than six applicants for 2012 mobile vendor permits in Iowa City, the Plaintiff was entitled to a permit, according to the Administrative Rules, if he was one of the six highest scoring applicants. To score the applications, the City Manager has four judges provide scores for each application in each category: two judges from the City Manager's office, one from the Housing and Inspection Services Department, and one from the Parks & Recreation Department. Each application is given a total score in each category 54 AU .rFrA based upon the average of the four totals provided by the judges. The judges score guide's for the Plaintiff belong to: 1) City Manager 1 — Return pp. 22 2) City Manager 2 — Return pp. 23 3) HIS — Return pp. 24 4) Parks & Rec. — Return pp. 25 City Manager designees 1 and 2, as well as HIS, gave the Plaintiff zero points for Previous Experience. This was because the seniority rule prevents judges from assessing any points for Previous Experience to new applicants, even if they a long history of mobile vending experience outside of Iowa City. Seniority isn't defined in the ordinance, Administrative Rules, or score guide. If there are no written instructions directing judges to do so, how are the judges to know to give new applicants zero points for Previous Experience? The only logical answer is that the judges are verbally instructed to do so by the City Manager or designees prior to scoring the applications. This is apparent from the fact that Parks & Rec. gave the Plaintiff ten points for Previous Experience. It would appear logically that the independent judge from Parks & Rec. was not verbally instructed that new applicants automatically get zero points for 55 4UCr�" Previous Experiences'. However, it is clear the independent judge from HIS was verbally instructed by the City Manager or designees to give new applicants zero points for Previous Experience. Of course, the judges from the City Manager's Office knew the seniority rule and would apply it faithfully. The City Manager, after securing three zeros for Previous Experience for all new applicants, had no need to instruct the independent judge from Parks & Rec. about the seniority rule. With three automatic zeros for Previous Experience, the Plaintiff was guaranteed to, at best, receive an average score of five points out of twenty for Previous Experience. This made it impossible for the Plaintiff, or any new applicant, to score high enough to get a permit. Effectively, the scoring process was a fraud, sham, predetermined, and conducted in bad faith. So then, the seniority rule is a verbal instruction given to judges prior to scoring that says: "new applicants get zero points for previous experience." The Defendants have never seriously disputed this. I "o the extent that the District Court made legal and factual findings which declined to find that seniority was the sole basis used to issue permits under the Administrative Rules, those findings are without support in the record. The Defendants appear to believe this sentence in the s' The Defendants testified at the City Council appeal that the Parks & Rec. judge gave the Plaintiff ten points in error, as it violated the seniority rule. (Return pp. 141). 56 �U.6r >f1 Administrative Rules provides authority for the seniority rule: "Note that because there are only six permits available, permits are granted based on seniority." Based on this scoring mechanism, the outcome was predetermined: all six permittees from the previous calendar year would assuredly be issued permits. This is apparently why the City Manager's Office initially thought, prior to the Plaintiff threatening Mandamus, that it could close "...the application process to the general public this year." (Supplemental Return pp. 9, 11 -13). The Defendants obviously believe that they have the authority under § 10 -3 -5 to automatically renew permits from the previous year. § 10 -3-5 provides the City Manager no such authority. Finally, compare the Administrative Rules (Rev. 05 -2011) with the new set of revised Administrative Rules (Rev. 12- 2012). Clearly, the criteria in the new Administrative Rules (Rev. 12 -2012) embody the intent of parent ordinance 10 -3 -5. Equally clear, Administrative Rules (Rev. 05 -2011) applied to the Plaintiff's application exceeded the scope and intent of parent ordinance § 10 -3-5. The Defendants claim the use of the seniority rule advances two important interests for the City: executively issuing permits to applicants who have obtained a permit in the past advances the public welfare and it protects the investment of the permttees. The Defendants asserted in the district court that issuing the permits based solely on seniority advances the public welfare, since previous permittees have "a 57 record of cleanliness, reliability, and Code compliance." It is the Plaintiff's contention that if a new applicant for a permit scores higher than a permittee from the previous year, the City necessarily admits the new applicant will meet or exceed the performance of the lower scoring applicants, even if the lower scoring applicant was a previous permittee. This completely negates any conclusion that the seniority rule advances the public welfare. If anything, it stifles competition and forces the public to be sold inferior goods. It hurts, rather than advances, the public welfare. The second reason the Defendants put forth to justify the seniority rule is the interest of "protecting the investment of previous permittees." The crux of the Defendants argument is that preventing competitors from receiving a permit by administratively issuing permits to permittees from the previous calendar year advances a "governmental" interest of Iowa City by protecting the permittees investment. Yet the investment of a permittee is not a governmental interest, it is a private interest. In no way can the investment of a private firm in a for - profit food cart advance the welfare of the general public. The proposition is absurd. Therefore, the Plaintiff asserts the Defendants cannot claim that protecting the investment of permittees from the previous calendar year by not issuing permits to new applicants, in contravention of parent ordinance § 10-3-5, advances an interest of Iowa City or the general public in any way. The Plaintiff would like to stress that he has never argued the City cannot use seniority as a factor in scoring the applications. However, 58 AUG - 6 �j)i; the Plaintiff argues that pursuant to parent ordinance g 10 -3 -5, seniority cannot be used to exclude all new applicants. Having enacted system that limits the duration of permits to one year and offering no right to renewal, Iowa City is bound to act in accordance with the ordinance as it's written. The Plaintiff submits that the balancing of the factors enunciated in the second prong of the Mathews a Eldridge weighs in his favor since procedurally, no new applicant could have received a score high enough to obtain a permit due to the seniority rule. iv. The District Court's Legal and Factual Conclusions Holding the Plaintiff's Procedural Due Process Rights Were Not Violated Were Legally Erroneous The District Court's legal and factual conclusions holding the Plaintiff's had no protectable interest pursuant to State P. Wlillard and HCl' P. Vilsack were clearly LEGALLY ERRONEOUS. To the extent that the District Court made legal and factual findings which declined to find that seniority was the sole basis used to issue permits under the Adrnirustrative Rules, THOSE FINDINGS ARE WITHOUT SUPPORT IN THE RECORD. To the extent that the District Court made legal and factual findings which found that the Administrative Rules were nevertheless adequate, THOSE FINDINGS ARE WITHOUT SUPPORT IN THE RECORD. 59 b. Defendants Did Not Act In accordance With § 10 -3 -5 The Defendants did not act in accordance with § 10 -3 -5. The �1arch 13, 2012 denial letter did not contain the reasons for denial, as required by § 10 -3 -5. The subsequent email exchange between the Plaintiff and Defendants was not sufficient to make up for this deficiency. (Return pp. 119 -130; Supplemental Return pp. 1 -18). The Defendants' March 15, 2012 email notified the Plaintiff for the first time that a "score guide" was used to evaluate the applications. The score guide was not on file with the City Clerk. The ordinance gave the Plaintiff five days to appeal and he filed his appeal March 19, 2012. The Defendants notified the Plaintiff after his appeal was filed that four judges provided scores to him and what those scores were. (Supplemental Return pp. 15 -16). The appeal was added to the City Council's next meeting agenda the day after the appeal was filed on March 20, 2012. With the late and limited information in hand, the Plaintiff could not adequately defend the appeal before the City Council. Additionally, the Administrative Rules exceeded and were inconsistent with 10 -3 -5. Ordinance § 10 -3 -5 clearly intends that "any person" has a right to a permit. The Defendants issued the permits solely based on seniority. To the extent that the District Court made factual findings which declined to find that seniority was the sole basis used to issue permits under the Administrative Rules, those findings are without support in the record. 60 Therefore, the Defendants DID NOT ACT IN ACCORDANCE WITH § 10 -3 -5 and therefore the writ should have been sustained on this basis alone. c. Defendants Actions Were Unreasonable, .Arbitrary, or Capricious The informal seniority rule clearly exceeds both § 10 -3 -5 and the City Manager's own Administrative Rules under § 10- 3 -5(G). Applicants are not even apprised of the specifics of this rule. It is neither in the ordinance itself, nor is it detailed in the Administrative Rules. It appears to be whispers among judges prior to the scoring. It is unreasonable to all new applicants in that it prevents the scoring judges from assessing any points for Previous Experience to new applicants, even if they have a long history of mobile vending outside of Iowa City . The score guide is not on file with the City Clerk, nor does it define the parameters of seniority. To the extent that the District Court made factual findings which declined to fund that seniority was the sole basis used to issue permits under the Administrative Rules, those findings are without support in the record. THE DEFENDANTS' ADMINISTRATIVE RULES ARE PER SEUNREASONABLE, ARBITRARY, CAPRICIOUS, and establish an illegality. The Iowa Supreme Court should sustain the Plaintiff's Writ of Certiorari on this basis alone. II. THE DISTRICT COURT ERRED WHEN IT GRANTED THE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. A. Preservation of Error 61 After the District Court annulled the Plaintiff's Writ of Certiorari, the parties filed Motions for Summary Judgment on Count II. On Mar. 5, 2013, Judge Turner granted Defendants' Motion for Summary Judgment and denied the Plaintiff's Cross - Motion for Summary Judgment. In the District Court's Mar. 5, 2013 Ruling, the court adopted its findings from the certiorari ruling and expanded its Ruling by also holding that Hawkeye Commodity Promotions, Inc. P. Vilsack, 486 F.3d 430 (2007) supported a finding that the Plaintiff had no property interest. The District Court also reiterated its findings that the Administrative Rules were consistent with the ordinance and were not unreasonable, arbitrary, or capricious. The Plaintiff timely appealed the final judgment April 3, 2013, thereby preserving these issues for appellate review. B. Standard of Review The Iowa Supreme Court reviews rulings on a motion for summary judgment for the correction of errors at law. Bagelmann v. First Nat'l Bank, 823 N.W.2d 18, 23 (2012). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citing Iowa R. Civ. P. #1.981(3)). On appeal from a grant of summary judgment, we review the facts in the light most favorable to the nonmoving party. Id. We also afford the nonmoving party every 62 Ail '0_ r legitimate inference that may be reasonably deduced from the record. Id. Where a motion for summary judgment is supported, the nonmoving party must respond with specific facts that show a genuine issue for trial. Mueller P. Vellmark, Inc., 818 N.W.2d 244, 253 (2012). C. Argument The Plaintiff hereby incorporates the Procedural Due Process argument set forth in Issue I, Argument above herein. The Plaintiff asserts he indeed has a protectable property interest and has, as a matter of law, met the first prong of Mathews v. Eldridge. In the context of Defendants' Motion for Summary Judgment, if the Plaintiff had a protectable interest under the first prong of Mathews P. Eldridge, the Plaintiff would be entitled to have a jury decide if the Administrative Rules were adequate under the second prong of Mathews P. Eldridge. Taken in a light most favorable to the Plaintiff, and uncontested by the Defendants, the Iowa Supreme Court must find that the 2012 mobile vendor permits were issued based solely on seniority. This precludes summary judgment, since a jury could reasonably conclude issuing the permits based exclusively on seniority violated of the second prong of Mathews P. Eldridge. The District Court COMMITTED LEGAL ERROR in granting the Defendants motion for summary judgment. III. THE DISTRICT COURT ERRED WHEN IT DENIED THE PLAINTIFF'S CROSS - MOTION FOR SUMMARY JUDGMENT. 63 AUG -,6 al"-; A. Preservation of Error After the District Court annulled the Plaintiffs Writ of Certiorari, the parties filed Motions for Summary Judgment on Count II. On Mar. 5, 2013, Judge Turner granted Defendants' Motion for Summary Judgment and denied the Plaintiffs Cross - Motion for Summary Judgment. In the District Court's Mar. 5, 2013 Ruling, the court adopted its findings from the certiorari ruling and expanded its Ruling by also holding that Haavkeye Commodity Promotions, Inc. P. Vilsack, 486 F.3d 430 (2007) supported a finding that the Plaintiff had no property interest. The District Court also reiterated its findings that the Administrative Rules were consistent with the ordinance and were not unreasonable, arbitrary, or capricious. The Plaintiff timely appealed the final judgment April 3, 2013, thereby preserving these issues for appellate review. B. Standard of Review The Iowa Supreme Court reviews rulings on a motion for summary judgment for the correction of errors at law. Bagelmann P. First Nat'l Bank, 823 N.W.2d 18, 23 (2012). Summary judgment is appropriate when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Id. (citing Iowa R. Civ. P. #1.981(3)). On appeal from a grant of summary judgment, we review the facts in the light most 64 AUG favorable to the nonmoving party. Id. We also afford the nonmoving party every legitimate inference that may be reasonably deduced from the record. Id. Where a motion for summary judgment is supported, the nonmoving party must respond with specific facts that show a genuine issue for trial. Mueller v. Vellmark, Inc., 818 N.W.2d 244,253 (2012). C. Argument The Plaintiff hereby incorporates the Procedural Due Process argument set forth in Issue I, Argument above herein. The Plaintiff asserts he indeed has a protectable property interest under the first prong of Mathews v. Eldridge. In the context of Plaintiff's Cross - Motion for Summary Judgment, if the Plaintiff had a protectable interest under the first prong of Mathews P. Eldridge, the Plaintiff would be entitled to summary judgment if the Administrative Rules were inadequate as a matter of law under the second prong of Mathews v. Eldridge. The l�dministrative Rules would be inadequate as a matter of law if the balancing test enunciated in the second prong of Mathews v. Eldridge weighed overwhelmingly in the Plaintiffs favor —so much so that the reviewing court would be required to find the Administrative Rules were inadequate as a matter of law. Since it was uncontested by the Defendants, the Iowa Supreme Court must find that the 2012 mobile vendor permits were issued based solely on seniority. Since the Administrative Rules did not provide the Plaintiff a path to a permit, they were inadequate as a matter of law. The 65 All( .r 1Qg Plaintiff was therefore legally entitled to summary judgment and the District Court COMMITTED LEGAL ERROR denying the Plaintiffs Cross -Motion for Summary Judgment. IV. THE DISTRICT COURT ERRED WHEN IT DENIED THE PLAINTIFF'S MOTION TO AMEND A. Preservation of Error After the District Court annulled the Plaintiffs Writ of Certiorari, the Plaintiff filed a Motion to Amend the complaint pursuant to Iowa R. Civ. P. #1.402(4) and sought leave to add Count III — Declaratory Judgment. On Mar. 5, 2013, Judge Turner granted Defendants' Motion for Summary Judgment and denied the Plaintiff s Cross -Motion for Summary Judgment. The District Court also denied the Plaintiffs Motion to Amend. The Plaintiff timely appealed the final judgment April 3, 2013, thereby preserving these issues for appellate review. B. Standard of Review Denial of a motion to amend will only be reversed where a clear abuse of discretion is shown. M -Z Enters., Inc. P. Hawkege -Sec. Ins. Co., 318 N.W.2d 408, 411 (1982). Leave to amend shall be freely given when justice so requires. Grace Hodgson Trust P. McClannahan, 569 N.W.2d 397, 399 (1997). Amendments are the rule and denials are the exception. Id. The timing of an attempt to amend is not the 66 AUG 6 206,; determinative factor in granting the motion; rather the question is whether the proposed amendment substantially changes the issues before the court. Allison- Kesleg Ag Ctr., Inc. v. Hildebrand, 485 N.W.2d 841, 845 -46 (Iowa 1992). C. Argument The District Court abused its discretion by denying Plaintiff's Nov. 13, 2012 Motion to Amend. The Plaintiff sought leave of court, as the Defendants, of right, did not consent to the amendment. The existence of another remedy does not preclude a declaratory judgment. Iowa R. Civ. P. #1.1101. The Declaratory claim was not substantially different than Counts I and 11. The Defendants would not have been prejudiced by the amendment. No trial had been scheduled. The proposed declaratory count would not have substantially changed the issues before the court. The facts giving rise to the declaratory count were nearly identical to the certiorari and constitutional claims. Davis P. Ottumwa YMCA, 438 N.W.2d 10, 15 (1989) discussing Foman P. Davis, 371 U.S. 178,182 (1962)). As long as the amendment would not substantially change the issues or defense of the case, the court should permit the amendment. Glenn v. Carlstrom, 556 N.W.2d 800, 804 (1996). Therefore, the District Court ABUSED ITS DISCRETION in denying the Plaintiffs Motion to Amend. 67 AUG 6 Tf1f, CONCLUSION In conclusion, the Plaintiff hereby submits that the District Court made factual and legal conclusions that were legally erroneous and that did not have support in the record. The Iowa Supreme Court should sustain the Plaintiff's Writ of Certiorari, reverse the summary judgment granted to the Defendants, grant the Plaintiff's Cross - Motion for Summary Judgment, and grant the Plaintiff declaratory relief. 68 A,i41C; 6 111 �: