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HomeMy WebLinkAbout2010-01-14 Info Packet~ = 1 ~- ~III~ ~ ak 1 ~®~~~ ~~ CITY OF IOWA CITY www.icgov.org CITY COUNCIL INFORMATION PACKET REVISED January 15, 2010 JANUARY 19 and 20 SPECIAL WORK SESSION IP1 Council Meetings and Work Session Agenda IP1a Memorandum from Interim City Manager: Budget Issues Discussion IP2 Memorandum from Council Members Mike Wright and Connie Champion: FY11 Aid-to- Agencies Funding Recommendations MISCELLANEOUS IP3 Letter from the City Attorney: City Manager Search -PAR Group IP4 Letter from JCCOG Traffic Engineering Planner to Residents of Shannon Drive and Andrea Court: Traffic calming on Shannon Drive IP5 Memorandum from the Director of Public Works: Update: Flood-related activities IP6 District Court for Johnson County Robert James Hegeman, Plaintiff vs. The City of Iowa City and the City Council of Iowa City, Defendants IP7 Grant Wood Neighborhood Association Newsletter January 2010 DRAFT MINUTES IP8 Board of Adjustment: December 16, 2009 ~ - i ~ - at "'" ~I~'ti'.~ ~...__ CITY OF IOWA CITY www.icgov.org CITY COUNCIL INFORMATION PACKET JANUARY 19 and 20 SPECIAL WO January 14, 2010 SESSION IP1 Council Meetings and Work Session Agenda IP2 Memorandum from Council Members Mike Wright and Connie Champion: FY11 Aid-to- Agencies Fundir~ Recommendations MISCELLANEOU IP3 Letter from the City Attorn :City Manager Search PAR Group IP4 Letter from JCCOG Traffic gineering Planner to esidents of Shannon Drive and Andrea Court: Traffic calming on Sha on Drive IP5 Memorandum from the Director of ublic Works: pdate: Flood-related activities IP6 District Court for Johnson County R bent J mes Hegeman, Plaintiff vs. The City of Iowa City and the City Council of Iowa City, of ndants IP7 Grant Wood Neighborhood Association wsletter January 2010 DRAT MIN~IJTES IP8 Board of Adjustment: December~'6, 2009 -mom ~~ ' ~"®'~~ City Council Meeting Schedule and -.~..~_ CITY OF IOWA CITY Work Session Agendas www.icgov.org REVISED January 15, 2010 • MONDAY, JANUARY 18 Martin Luther King, Jr. Day -City Offices Closed • TUESDAY, JANUARY 19 Emma J. Harvat Hall 7:OOp Special Formal (Separate Agenda Posted) Executive Session Collective Bargaining Special Budget Work Session • WEDNESDAY, JANUARY 20 North Liberty 4:OOp Special Work Session -Joint Meeting (North Liberty) 7:OOp Special Budget Work Session (wrap up) Emma J. Harvat Hall TENTATIVE MEETING SCHEDULE SUBJECT TO CHANGE • MONDAY, JANUARY 25 Emma J. Harvat Hall TBD Special Work Session 7:OOp Special Formal Council Meeting (Continue Work Session if necessary) • MONDAY, FEBRUARY 1 Emma J. Harvat Hall 6:30p City Conference Board (Separate Agenda Posted) Regular Work Session • TUESDAY, FEBRUARY 2 Emma J. Harvat Hall 7:OOp Regular Formal Council Meeting • MONDAY, FEBRUARY 15 Presidents' Day -City Offices Closed • TUESDAY, FEBRUARY 16 Emma J. Harvat Hall TBD Special Council Work Session 7:OOp Regular Formal Council Meeting (Continue Work Session if necessary) • MONDAY, MARCH 1 Emma J. Harvat Hall 6:30p City Conference Board (Separate Agenda Posted) Regular Work Session • TUESDAY, MARCH 2 Emma J. Harvat Hall 7:OOp Regular Formal Council Meeting • MONDAY, MARCH 22 Emma J. Harvat Hall 6:30p Special Work Session -- • TUESDAY, MARCH 23 Emma J. Harvat Hall 7:OOp Special Formal Council Meeting 1 = ~ U1-14-1U ~; ~ ;~'~., IP1 """'w'~~ City Council Meeting Schedule and CITY OF IOWA CITY Work Session Agendas January 14, 20,0 www.icgov.org • THURSDAY, JANUARY 14 Emma J. Harvat Hall 7:OOp Special Budget Work Session (Boards/Commissions/Events) Discussion of Agenda items for January 20 Joint Meeting • MONDAY, NUARY 18 Martin Luther King, Jr. Day -City Offices Closed • TUESDAY, JANUY~-RY 19 7:OOp ~ Special Budget Work Session • WEDNESDAY, JANUA Y 20 North Liberty 4:OOp Spe ial Work Session -Joint Meet' g (North Liberty) 7:OOp Speci I Budget Work Session (wr pup) Emma J. Harvat Hall TEN~ATIVE MEET SUBJECT TQ • MONDAY, JANUARY 25 TBD Special Work Sess'on 7:OOp Special Formal Cou it VG SCHEDULE CHANGE Emma J. Harvat Hall (Continue Work Session if necessary) Emma J. Harvat Hall Emma J. Harvat Hall • MONDAY, FEBRUARY 1 6:30p City Conference Board S parate Agenda Posted) Regular Work Session • TUESDAY, FEBRUARY 2 Emma J. Harvat Hall 7:OOp Regular Formal Co ncil Meetin Emma J. Harvat Hall • MONDAY, FEBRUARY 15 Presidents' Day City Offices C • TUESDAY, FEBRUARY 16 TBD Special 7:OOp Regular Emma J. Harvat Hall it Work Session it Council Meeting (Continue Session if necessary) • MONDAY, MARCH 1 6:30p City C ference Board (Separate Agenda P Regu r Work Session • TUESDAY, MARCH 2 7:OOp • MUNUAY, MAKl.r1 6:30p i ular Formal Council Meeting Emma J. Harvat Hall Special Work Session Emma J. Harvat Hall • TUESDAY, MA H 23 Emma J. Harvat Hall 7:OOp Special Formal Council Meeting ~~~.®~t ~m~~~ ,~®,.~ CITY OF IOWA CITY ~P1a MEMORANDUM Date: January 15, 2010 To: City Council From: Dale E. Helling, Interim City Manager Re: Budget Issues Discussion Council is scheduled to meet on the evenings of Tuesday, January 19 and Wednesday, January 20 at 7 PM for discussion and decision-making with regard to the proposed budget. Broadly, issues to be addressed include: 1. Discuss and finalize the Capital Improvements Program. 2. Discuss and finalize the operating budget. 3. Discussion regarding funding for human service agencies and community events. I would like Council to address these in the order above over the two evenings. Discussion of the CIP will involve several staff members being present and if we can begin with that discussion, it should allow for completion on Tuesday evening and thereby avoid requiring those staff members to be present both nights. We can then move to operating budget decisions once the CIP discussion is concluded and finish up with the rest of the budget possibly Tuesday, or otherwise Wednesday evening. Capital Improvements Program (CIP) Council directed staff to add the following "unfunded" projects to the funded years. Northside Marketplace Streetscape $500,000 FY11 Riverfront Crossings Redevelopment, Planning Study $200,000 FY11 Towncrest Area Redevelopment $400,000 FY11 and $600,000 FY12 In addition, the following addition is needed based on current projections of revenue from FEMA : Animal Center Replacement $700,000 FY11 January 15, 2010 Page 2 It is further assumed that the downtown Business Incubator will be funded through private investment and that City participation in the Moss Green Park development will be through TIF debt. In order to remain as close as possible to Council's policy of limiting the proportion of the debt service levy to not more than 25% of the total property tax levy, the following projects were either modified or moved to later years or to the "unfunded" list. The included amounts reflect GO debt funding only, which may represent all or only a portion of the total project cost. If Council wishes to restore any of these to their original status, it may be necessary to modify or remove others, or to revisit your 25% policy. Under the presented scenario, those percentages are estimated a follows: FY11 - 25% FY12 - 26% FY13 - 25.23% City Park Trail Lighting Burlington Street Median: Gilbert to Madison Scanlon Gym Elevated Walk/Run Track Mormon Trek Left Turn Lanes Rocky Shore Ped Bridge to Peninsula Soccer Park Pond Scott Park Development & Trail *1S` Avenue/IAIS Railroad Crossing $240,000 FY14 to Unfunded $1,882,900 FY13 to Unfunded $880,000 FY12 to Unfunded $3,750,000 FY14 to Unfunded $1,300,000 To 80% funding reliant $337, 500 $416, 000 $232839 $1,091,261 $540,000 *Lower Muscatine Avenue on a future grant source FY14 to Unfunded To 100% funding from a recently awarded grant FY10 FY11 FY12 $692,000 FY10 $800,000 FY11 $2,100,000 FY12 $845,000 FY13 *These projects were revised to better reflect their projected construction schedule. Operating Budget January 15, 2010 Page 3 Council has directed staff to present a revised operating budget for FY11 utilizing a Gas and Electric Utilities Franchise Fee reduced from 2% to 1 %. This represents a reduction in revenue by about $840,000. Since submitting the draft budget to Council in mid-December, we continue to review and refine the numbers in the budget. Based on the most recent review, we have identified four major sources that will allow for a balanced budget while accommodating the $840,000 franchise fee reduction. $416,000 Surplus of projected revenue over budgeted expenditures for FY11. This is up from the projection in the budget draft due to moving from the general fund two positions that should have been shown as funded under other projects. $55,000 Reduction in the operating contingency of 3/4 of 1 % of expenditures by changing the calculation of the contingency to a percentage of projected expenditures only, rather than a combination of projected expenditures and transfers out. $23,000 Newly identified general fund revenue generated by recently approved increases in Parks and Recreation fees. $324,000 Increase in general fund chargebacks to enterprise funds. Due to increases in project funding and other operating expenses in the enterprise funds, administrative chargebacks have increased significantly for FY11. $818,000Total Staff will present more details involving these adjustments at your discussion on Tuesday, January 19. We will also have an updated General Fund summary page. mgr/asst/memos/budget issues.com IP2 ~ r Date: January 12, 2010 To: Iowa City City Council Members Fr: Mike Wright and Connie Champion Re: FY 11 Aid-to-Agencies Funding Recommendations _ ®~~ ;~,:, ~II-~~ ~ ,~®~~~ -.~...~ CITY OF IOWA CITY 410 East Washington Street Iowa City, Iowa 52240-1826 (319) 356-5000 (319) 356-5009 FAX www.icgov.org Attached you will find our proposed recommendations for FY 11 funding. The available funding, $425,268.00 is the same amount as FY10. Each agency submitted a funding application that was reviewed by the council members and used to make recommendations. 8 S n ~ z m ~ 7 N v ~ cQ ~ (D ~ Q v (D Q m .n m v a m m c m 0 ~_ ~ o ~ ~ ~ ~ o ~ rn m v n n n oo y, o i a ~ m ~ D ~ ~, a o o. 0 0 , d m ~ .~ a ~ <D . C1 rn Z1 ~ y ce c~ ~ c~ ~ 3 ~'. ui ~ N 3 ~ W n ~ y n o 3 o n ~ m ~ ~ m ~ a .~ o ~ `< O y O ~ ~ ~ ~ O ~ -ti O T ~ fD D O. ~ () A y ~ ~ O ~ W - O N C ~ p ~ ~' O n fD TI O ~ O. 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Y Y Re: City Manager Search -PAR Group As you know, the PAR Group acted as the City's consultant during the search that resulted in the hiring of Michael Lombardo. Because Mr. Lombardo was employed for less than 12 months the "guarantee" provision of PAR's contract with the City requires that PAR conduct another search, if Council so desires, for the cost of expenses only. Last April I notified PAR that Council might look to PAR to perform another search pursuant to the guarantee. More recently, my attempts to communicate with PAR by email and phone have been unsuccessful. Therefore, I sent PAR and its owner and registered agent, Kevin Conlon of Conlon Public Strategies, a letter asking how the PAR Group intended to satisfy its guarantee, whether that be by providing search services or monetary compensation. We have confirmed by a review of the invoices that the total professional fee, excluding expenses, paid to PAR by the City was $16,500. Attached you will find a copy of the letter I received today from an attorney for the PAR Group. The letter states that PAR is "regrettably closed for business" and currently "has no assets available for payment to creditors." I know from discussions with others that the City is not the only entity to receive this letter. I thought it best to inform you of this development now given your scheduled discussion on February 1 regarding a search for a new city manager. In the meantime, please give me a call if you have any questions. Cc: Marian Karr, City Clerk Dale Helling, Interim City Manager Kevin O'Malley, Finance Director. /1Jon Jd./~oCevifon Kicfiur~ J. ~tlas - o~ l~ounyel By Certified Mail January 7, 2010 ../dtlAa~ ~ oCevitorc ~j.~if~orneyd Aar oCaw 950 ///i~ivau~ee np~®/~/tve., wife 224 ~~nview, J`[G:nou 60025 Je~e~ione (847)699-8900 .`~acsini~e(847J699-8920 Ms. Eleanor M. Dilkes City Attorney's Office -City of Iowa City 410 East Washington Street Iowa City, IA 52240-1826 RE:The Par Group LLC/Michael Lombardo Dear Ms. Dilkes, REC~r~ED 8Y SAN ~ ~ 20 CITYg7?pRNEY'S pFFICE This letter is notification that due to unavoidable financial difficulties, The Par Group - Public Management Consultants, LLC is regrettably closed for business. At this point the company has no assets available for payment to creditors. Over the next sixty days the company will be reviewing its accounting records and in the event that assets become available, we will be in contact with you to arrange for the solution of any outstanding issues. It would be appreciated if any further correspondence or inquiries including outstanding payments and claims on this matter could be addressed to our office Sincerely, Don A. Leviton Cc:Kevin Conlon January 5, 2010 Residents of Shannon Drive and Andrea Court Re: Traffic calming on Shannon Drive Dear Resident: ~a.a~_ CITY OF IOWA CITY 410 East Washington Street Iowa City, Iowa 52240- 1826 (319) 356-5000 (319) 356-5009 FAX www. icgov.org The City has received a petition from residents of Shannon Drive to have this roadway considered for Iowa City's Traffic Calming Program. The City completed a traffic evaluation and determined that Shannon Drive qualifies for the program as the 85th-percentile speed of traffic exceeds 5 mph over the posted speed limit of 25 mph. During November, a public meeting was held to develop a neighborhood consensus on a preferred traffic calming measure. After much discussion, the group decided to pursue the installation of speed humps on Shannon Drive to complement the traffic calming measures already in place: chokers at the intersections of Jacque Court, Irving Avenue, and Andrea Court, and a raised crosswalk at the Willow Creek trail crossing. Speed humps are not the same as speed bumps. Speed bumps are used to slow traffic in parking lots and must be driven over very slowly. Speed humps are 12 feet in length with a maximum height of 3-4 inches in the center as shown in the attached drawing. A speed hump is meant to be driven over at or near the speed limit (25 mph on Shannon Drive). Some examples of existing speed hump installations are on Foster Road, Teg Drive, Morningside Drive, and Kimball Road. Based on the curvature of Shannon Drive, speed hump placement guidelines, and the location of storm sewers, it was determined that two speed humps could be safely installed on this roadway. Please see attachment for approximate proposed locations. I would like to determine your household's level of support for the installation of two speed humps on Shannon Drive. Please fill out the enclosed postage-paid survey card and drop in the mail by January 25t", 2010. Each household receives one vote. The neighborhood survey must indicate that least 60% of the responding households are in favor of the proposed traffic calming installation. The intent of the City's Traffic Calming program is to install traffic calming features only if that is the desire of the neighborhood. If the proposal receives enough support, it will be forwarded to the City Council for consideration. You will receive the results of the survey by mail. If the measure passes, you will be notified of the City Council meeting date. Public notice signs will be also posted on Shannon Drive. Comments on the proposal will be solicited from the Fire, Police, Public Works, and Transit departments in addition to local ambulance services. The City Council will make the final decision. If approved by the City Council, the speed humps will be installed with appropriate warning signage during the summer of 2010. Thank you for your consideration of this matter. Please return the postage-paid survey card no later than January 25tr', 2010. If you have any questions, please feel free to contact me at darian-nagle- gamm@iowa-city.org or 356-5254. cerely, n Nagle-Gamm JCCOG Traffic Engineering Planner cc: City Council John Sobaski John Yapp Dale Helling Ron Knoche Matt Johnson Rick Fosse Dave Panos Marcia Bollinger Bud Stockman Jeff Davidson .,. J('~ t.)(;~.I ItA'~5'1 ~s~ftic 4i i h: ~`. L i;(i,_ (':~Luu , i.n',,aa i f , C+:U ._ k _..~,~ r IP5 ~~1~.®~~ CITY OF IOWA. CITY ~,,.~ .~ ~E~O Date: January 14, 2010 To: City Council From: Rick Fosse, Director of Public Works Re: Update: Flood-related activities Engineering and Public Works Administration • The new structures and pipes constructed with Iowa Avenue Inverted Siphon Sewer Project are in operation. • The 30 day public comment period for the Iowa City 2010 Hazard Mitigation Plan started on January 13th. The approval of the plan will be on the February 16th Council agenda. • The Army Corps of Engineers will start the bidding process for the Section 14 Iowa River Bank Stabilization along Dubuque Street downstream from the Park Road Bridge at the end of January. The construction is planned for Spring 2010. • The City has purchased 26 properties through the FEMA Buyout Program. The City has 19 of the properties demolished and one property is vacant land. The City is currently pursuing bids for the demolition of five additional properties. • MMS Consultants have completed the preliminary design for the West Side Levee. Staff is still reviewing funding opportunities. • The City technical advisory committee met to discuss the Request for Qualifications (RFQ) for the design of the relocation of the North Waste Water Plant. This RFQ will go out in February. • The Iowa River Watermain Crossing Reconstruction Plans are being reviewed. Staff is working with FEMA to obligate the project funding. Water Division 1/12/10 River Crossings • Continued working. with Engineering & Howard R. Green (HRG) for design and construction of replacement of two 12" river crossing repairs (Old Plant and Hwy 6) • Review comments on HRG's bid design and specifications will be complete this week and be ready for Council approval. The U. of I. and City IT have shown strong interest of incorporating a fiber optic conduit at both locations as part of the project. FEMA has defined distinction criteria that would allow this to happen. • Funding for the water main crossing projects was confirmed, including design costs, through FEMA and Deb Mansfield. • The HRG Hazard Mitigation Study is the source of planning for proposed funding and projects on the peninsula site and the plant site improvements. January 14, 2010 Page 2 Peninsula Source Protection • The PW and Hazard Mitigation Plan for peninsula work; CW 3, CW 4, SW 4, JW 2 and the respective electrical systems has been `obligated' by FEMA. • HRG is under contract to provide design, specifications bid documents and inspection for the two projects. Design review will start next week. Water Works Prairie Park Source Protection • The HRG Hazard Mitigation Study is being used for additional funding request for hazard mitigation for plant site well houses. We are currently working with Dave Purdy. • We have submitted information to FEMA for the Benefit Cost Analysis (BCA) to ascertain our eligibility. • We received communication from FEMA that the BCA looks favorable. We are awaiting their decision to proceed further. ~~ In the District Court for Johnson Countyr° ~ ~~ 201 JAS! I ~+ AI's I I ~ 28 Plaintiff' s Trial Brief CI~Y~'LE~~~ I~ ~''f~ CI i Y.10~'~a Robert James Hegeman, Plaintiff ) EQCV070796 vs. ) The City of Iowa City and the ) City Council of Iowa City, ) Defendants ) r~ ~ -.- ~ -~ ~~ J~' ~~ ....yy ~. i/a ~r.~ f "~ C •~~I 'fl l r..~+- ~7 ~ ~ ` :-J ~ ~'1 Plaintiff st ates: ~ .; Z `--' ~m G w . Tr' ~ , ~. Introduction & Overview `~-' Iowa Code 414.5 confers upon city councils jurisdiction to rezone property. It also gives landowners adjacent to property being rezoned the power to limit that jurisdiction by filing a protest petition to compel a three-fourths affirmative vote: 414.5 Changes -- protest. The regulations, restrictions, and boundaries may, from time to time, be amended, supplemented, changed, modified, or repealed. In case, however, of a written protest against a change or repeal which is filed with the city clerk and signed . .by the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the change or repeal is proposed, the change or repeal shall not become effective except by the favorable vote of at least three-fourths of all the members of the council. The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments. 1 ~~~:~~ `l~~ The language "shall not become effective except by a favorable vote of at least three-fourths of all the n~ ( l~ ~~ (': 2g of the council" is similar to language in other authorize ~~~~,~ statutes which has been interpreted to be mandatory anc~a~'~''!~ C(T~f: i~i:~,6~ jurisdictional. See Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 at 571 (Iowa 1973); B.& H Investments, Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa 1973); and OSAGE CONSERVATION CLUB, Appellant, vs. BOARD OF SUPERVISORS OF MITCHELL COUNTY, IOWA, Appellee, 611 N.W.2d 294 (Iowa 2000). Failure to comply with the requirement for a three-fourths affirmative vote mandated by 414.5 once a protest petition has been filed is a jurisdictional issue appropriate for review by certiorari. If sustained, failure to comply with 414.5 is a compelling reason to void the rezoning ordinance for lack of jurisdiction. This certiorari action challenges the adoption of Ordinance 09-4336 by Defendants. Ordinance 09-4336 purportedly adopted a rezoning proposal REZ08-00011, initially an eighty acre tract in Southwest Iowa City for which notice was given. Hearings were held on March 10, March 24 and April 6, 2009. Plaintiff challenges three separate actions by defendants, each one of which justifies this Court in voiding 09-4336: I A protest petition meeting all requirements of 414.5 was filed March 10, 2009, triggering the requirement for a three-fourths affirmative vote. Defendants voted 5-2 in favor of Ordinance 09-4336 on April 6, April 20 and May 5, 2009, and have since treated the ordinance as having been passed. Under 414.5, failure to pass a rezoning amendment by three-fourths vote deprived Defendants of jurisdiction to enact 09-4336. 2 II A second protest petition against the substantiall~j changed REZ08-00011 was filed May 4 and met the ~ 1~ requirements of Iowa City ordinance 14-8D-SG, t~~~~~by' 4 ~~ ~ ~ . 2~3 requiring a three-fourths affirmative vote at the ~I third consideration on Ma 5. Because the final ~ ~Y ~°~-~~'~~'~ of 5-2 never met the three-fourths requirement, ordinance 09-4336 never met the requirements for passage defined by Iowa Code 380.3 and therefore never passed.I IIA The area being rezoned was reduced by nearly twenty acres, a substantial change announced on the last day of the public hearing, April 6. The change was made without proper notice and was used to invalidate the March 10 protest petition. Failure to provide a new notice and hearing after a substantial change violated 414.4 and 414.5, depriving Defendants of jurisdiction to enact 09-4336. Facts Defendants provided notice for rezoning an 80 acre tract in southwest Iowa City known as REZ08-00011. P 035.2 Hearings were held March 10, March 24 and April 6, 2009. pp 057,163 & 239. Defendant and other owners of 200 of land within 200 feet from the area originally proposed to be rezoned submitted a protest petition at the March 10 hearing (pp 057, 070, 142-157), which Defendants have admitted. Def Ans., Ct 1, No 4. But On March 31 a new conditional zoning agreement was sent to the city council, decreasing the area 1 There are three claims in two counts: the Roman numeral identifies the Count, with II.A and II.B being separate claims in Count II. z All page references are to Defendants' Certified Return to Writ of Certiorari unless otherwise stated. 3 to be rezoned by approximately 20 acres.3 (pp 251-4) No~li~~ notice was provided. Pp 1-378 The first public disclosure that altered 60 acre tract would in fact be the oneZ~t.~~ ~ ~~j~.2~ came on the last day of the hearing, April 6. P 235. ~~ `,~ C~ ~~~~ Council voted 5-2 in favor of the changed REZ08-00011 CO~`~,r~~~A April 6, April 20 and May 5, 2009. Pp 237-8, 313-4 & 340. No vote met the three fourths margin required by Iowa Code 414.5.4 Plaintiff and other landowners filed a second protest petition against the changed proposal on May 4, the day before the third and final vote. Defendants disregarded this petition. pp 361-378 On May 5, Defendants passed ordinance 09-4336 by the final vote of 5-2. Defendants admit that they have treated Ordinance No. 09-4336 as having been passed. Def Ans., Ct 1, No 6. Count I Issues: 1. Did the Plaintiff's March 10 protest petition meet the requirements of Iowa Code 414.5 to require that Ordinance 09-4336 be passed by a three-fourths vote? 2. If so, did the Defendants have a valid legal reason justifying the passage of Ordinance 09-4336 by a simple majority vote short of the three-fourths required by Iowa Code 414.5? s The changes were: (1) The area being rezoned from ID-RS to RS-5 decreased from 18.58 acres to 0.98 acres, a 95~ decrease. (2) The area being rezoned from RR-1 to RS-5 decreased from 44.29 to 40.13 acres, a 9~ decrease. (4) the area being rezoned from RS-5 to OPD-5 decreased from 79.27 acres to 60.28 acres, a 24~ decrease. (4) A new outlot D was created (20 acres more or less) and now excluded from the original REZ08-00011. Compare original notice p 035 and pp 055 & 0160 with p 235. A vote of 5-2 is a 71~ majority vote. 5/7 = 0.714. ~ = 0.75. 0.714<0.75. 4 Argument '` I. DEFENDANTS HAVE ADMITTED THAT PLAINTIFF'S PROTEST PETITION MLT THE RQUIREMBNTS OF IOWA CODE 414.5 . ~~ i O J~i~ ~ ~+ aid ~ E ~ 2 $ Iowa Code 414.5 requires (1) that a protest petitic~ t.~~~i~ signed by the owners of 20% or more of property withir~~~ C~~~', !~~`4r"~ feet of the exterior boundaries of the property for which the rezoning is proposed and (2) that the document be filed with the city clerk at or before the public hearing. Defendants have admitted that plaintiff's protest petition met these requirements: Defendants admit that owners of 20% of land within 200 feet from the area originally proposed to be rezoned did submit a protest petition at the March 10, 2009, City Council meeting during the public hearing on the proposed rezoning. D Ans., Ct.l, No 4. Defendants have admitted that as of March 10, 2009, Plaintiff's protest petition had met the requirements of Iowa Code 414.5. As of that date, Iowa Code 414.5 required that Ordinance 09-4336 be passed by a three-fourths affirmative vote. Each of the three votes on Ordinance 09-4336 had a tally of five votes in favor, two against. In Iowa City, there are seven city council members. Six members must vote in favor of the ordinance to exceed the three-fourths margin required by 414.5. Having failed to meet the express requirements of Iowa Code 414.5, Ordinance No. 09-4336 is not and has never been effective, yet the Defendants have wrongfully treated 09-4336 as having been passed. II. PLAINTIFF ESTABLISHED A PRIMA FACIE CASE, SHIFTING THE BURDEN TO DEFENDANTS TO SHOW THAT PASSAGE OF ORDINANCE 09- 4336 BY SIMPLE MAJORITY VOTE AFTER THE FILING OF A PROTEST PETITION COMPLIES WITH 414.5. 5 Plaintiff has carried the burden of showing that -~-~~ Plaintiff's protest petition has met the requirements o''f Iowa Code 414 .5 on March 10, thereby triggering the 2~« Jf$!~3 ~ ~ ~~~' ~: 28 requirement for a three-fourths affirmative vote on C I i Y ~, ~ ~ ~' ~'; ordinance No. 09-4336 from that time forward. Plaint~~,~~~Y~ ~Lo,,~J. also carried the burden of showing that Defendants have failed to pass Ordinance 09-4336 by that three-fourths affirmative vote. Finally, Plaintiff has carried the burden of showing that Defendants have treated Ordinance 09-4336 as if it had been passed. Plaintiff has established a prima facie case that Defendants have exceeded their jurisdictional authority to rezone property by not complying with the three-fourths affirmative vote required by Iowa Code 414.5. The burden shifts to the Defendants to show legal cause as to why Ordinance 09-4336 should not be ruled void for want of jurisdiction. III. THERE IS NO LEGAL PRECEDENT FOR DEFENTDANTS' POSITION There is no legal justification for Defendants' position. There is nothing in the Code of Iowa that allows for the three-fourths affirmative vote requirement, once triggered, to be rescinded. Nor are there any Iowa cases that support Defendants` position. However, there is established case law involving petitions and the transfer of jurisdiction between state and local governing bodies that is determinative of this case. IV. UNDER ESTABLISHED IOWA LAW, THE SUFFICIENCY OF PLAINTIFF'S PETITION IS DETERMINED AT THE TIME IT WAS FILED. As the present case illustrates, "the sufficiency of a petition may change depending on when the determination of 6 sufficiency is made."5 Plaintiffs petition was admitt defendants to be sufficient when filed on March 10, but ruled to be insufficient when measured on May 5 bec~~~~"~~~}& A~° J~: 2~ area being rezoned had changed in the interval. In the ~~.~~ Ci.L`~~! sentinel case of Seibert v. Lovell, the Iowa Supreme E~~~~~!', ~~~~~~ addressed this important issue of when the sufficiency of a petition should be determined. The case involved petitioners who attempted to withdraw their signatures from a petition that had already been filed: We hold, then, that the question of jurisdiction is to be determined from the petition as it was when filed, and without regard to the subsequent acts of the petitioners. So far as affecting jurisdiction which had already attached was concerned, the protests and remonstrances were of no effect. They were proper to be taken into consideration by the board in passing upon the merits of the petition, but they were not available for any other purpose. It must be remembered that jurisdiction did not attach as of the date when the board acted, but as of the date when the legal petition was filed. The power to act having been conferred upon the board by virtue of a legal petition, it could not be impaired or taken away by the protests, remonstrances, or attempted withdrawals of some of the petitioners. Seibert v. Lovell, 61 N.W. 197, at 199 (Iowa, 1894). See City of Des Moines v. City Development Bd. 473 N.W.2d 197 at 201 (Iowa, 1991) citing Seibert with approval. When a statute provides for jurisdiction to be passed from the state to a county, city or board as a result of a petition, the exact language used may be important. A statute using the language "which has been filed" leaves open an argument that the sufficiency of a protest petition could possibly be determined at some time after filing. But when the statute uses the term "which is filed", the rule of s Brown, Roger, Assistant City Attorney, Des Moines, Letter to Mayor Cownie and Members of the Des Moines City Council, July 26, 2006. 7 Seibert would apply and the time for determining the l~ ~!~ sufficiency of a petition is the time it was filed.6 Tie 4~ language of 414. 5 states "In case, however, of a wri~~n~J~-;~ ~ 4 A;~~ (~ : 28 protest against a change or repeal v~hich is filed with t~; ~~~ t ~~' ~f~~fit~, city clerk ." The time for determining the suffici~~ C11t. ,~ of the Plaintiff's protest petition was when it was filed. Seibert. In their answer, Defendants have admitted that Plaintiff's protest petition was filed on March 10 and was sufficient as of that date. As in Seibert, once jurisdiction is conferred or withdrawn by the filing of a petition, subsequent actions do not change the sufficiency of that petition. The moment Plaintiff's petition was filed on March 10, the Defendants' had jurisdiction to pass ordinance 09-4336 only if passed by a three-fourths affirmative vote. Subsequent changes to the area being rezoned had no effect on the sufficiency of Plaintiff's petition under the rule in Seibert. Any change to the conditional zoning agreement between the City and the developer had absolutely no legal effect on the sufficiency of Plaintiff's protest petition.' Only by suspending this procedure and initiating a new one with a proper notice and hearing could the Defendants hope to escape the requirement for a three-fourths affirmative vote. V. IOWA CODE 414.5 AND PUBLIC POLICY ARE IN AGREEMENT WITH THE ABOVE LINE OF REASONING. Iowa Code 414.5 is in agreement with Seibert, stating that the protest petition is to be measured against "the e Brown, Roger, Assistant City Attorney, Des Moines, Letter to Mayor Cownie and Members of the Des Moines City Council, July 26, 2006. ' Were it otherwise, the city could confer unto itself jurisdiction unilaterally simply by making late changes in a rezoning proposal and invalidating a previously filed petition. The city would be increasing its jurisdiction from the requirement to meet a three-fourths affirmative vote to only meeting a simple majority vote. 8 property for which the change or repeal is proposed." T~! ~ 8.,.. IE.~. ~. word proposed in the Black's law dictionary, 8th Edition, means: 2010 J~IV 14 ~ 11 ~ 28 Proposed regulation. A draft administrative ~IT~ ~~ ~~~~ regulation that is circulated among interested jv~L~A CITY. ~~'u~i'1`~ parties for comment. A proposed regulation is not the final regulation being voted on, it is the predecessor circulated for comment. A property for which a change or repeal is proposed is not the one being voted on, it is the one circulated among surrounding landowners by public notice for comment at the public hearing. A close reading of Defendants Answer indicates that Defendants have admitted that Plaintiff's protest petition was adequate when measured against the "proposed rezoning": Defendants admit that owners of 200 of land within 200 feet from the area originally proposed to be rezoned did submit a protest petition at the March 10, 2009, City Council meeting during the public hearing on the proposed rezoning. Answer, Ct. 1, No. 4. Were defendants' position upheld, any city council, once a protest petition were filed, could simply look at a protest petition, adjust the boundary at the last minute, and then pass rezoning proposals by a simple majority vote instead of the three-fourths required by 414.5. Sustaining defendants' interpretation of 414.5 and permitting last minute boundary adjustments to invalidate already filed protest petitions would completely undermine the very purpose of Iowa Code 414.5, i.e. to confer important rights on landowners adjacent to property being considered for 9 rezoning.8 Defendants' interpretation of 414.5 is co'ht~~~ to established rules of statutory construction. s rue ~~05~~ i ~~ I i ~ 28 a statute a court must view its purpose to be subserveT ay~n place on it a reasonable or liberal construction wl~~~~ ! ! ~. 10~~~'~~ best effect its purpose rather than one which will defeat it. Monroe Community School Dist. Of Marion and Jasper Counties v Marion County Bd. Of Ed., 103 N.W.2d 746, (Iowa 1960). Defendants' position undermines the purpose of 414.5, Plaintiff's position upholds it. Conclusion Plaintiffs filed a protest petition meeting the requirements of Iowa Code 414.5 on March 10, triggering the requirement that Ordinance 09-4336 be passed by a three- fourths affirmative vote. Three times Defendants voted 5-2 in favor, every vote short of the required three-fourths affirmative vote. Compliance with the three-fourths affirmative vote of Iowa Code 414.5 is mandatory and jurisdictional, failure of which deprived the Defendants of jurisdiction to act on Ordinance No. 09-4336. Wherefore, Plaintiff respectfully requests that this Court void Ordinance No. 09-4336 for lack of jurisdiction. s Defendants would have this court rule that last minute changes are fair, that those changes can by relied on to invalidate an already filed protest petition, and that it was sufficient that surrounding landowners, none of whom received official notice of the altered rezoning proposal, had sufficient time to file an amended protest petition between the time the changes to REZ08-00011 were announced on April 6 and the time the hearing was closed less than an hour later. Aright conferred by an Iowa Statute that requires notarized signatures of approximately 14 different property owners that begins running without notice and closes within an hour is no right at all. 10 Count II '° Issue ~.Ql~~j~~ ! 4 A~1 I I ~ 28 Did Defendants, by taking no action on the second p o petition, fail to comply with their own city code? !~ ~~ ~lT~. ~~~~ ARGUMENT The Plaintiff and other landowners filed the second protest petition at 8:28 A.M. on May 4. Pp 361-378. ,The final vote on ordinance 09-4336 came on the evening of May 5 and was again 5-2. Although plaintiff believes the second protest petition exceeded 200 of the revised 60 acre tract, the Defendants never ruled on the sufficiency of this petition. Plaintiff agrees the second petition was too late under 414.5, which requires the protest petition to be filed "at or before the public hearing" which closed April 6. However, Defendants apparently did not consider their own city code, which contains no such time limitations. Title 14 Chapter 8 Article D-5 of the Iowa City Code states: G. Protests: If a protest against such amendment is presented in writing to the city clerk, duly signed and notarized by the owners of twenty percent (20%) or more of the area of the lots included within the area for which the amendment is proposed or by the owners of twenty percent (200) or more of the property which is located within two hundred (200') of the exterior boundaries of the area for which the amendment is proposed, such amendment shall require the favorable vote of three-fourths (~) of the members of the city council for passage. Under the rule in Seibert above, the sufficiency of the second petition was determined as of 8:28 AM May 4, nearly two full working days before the third and final vote on May 5. There being no time limitation as to when a protest petition must be filed, the petition was timely filed before I1 the final vote on May 5. Plaintiff's second protest ~~ petition filed May 4 triggered the requirement for a three- fourths majority vote.9 The 5-2 vote on May 5 was tY~~'~ ~~ ~,~ 2~ insufficient to ass Ordinance 09-4336 on the third rea ,~ When a proposed ordinance or amendment fails to receiv~~~~A ~~~°~', ~G ~~'E~ sufficient votes for passage at any consideration or vote thereon, the proposed ordinance or amendment shall be considered defeated. Iowa Code 380.3 Ordinance 09-4336 must be voided for lack of sufficient votes for passage on the third vote. Wherefore, because Defendants failed to pass Ordinance 09-4336 by a three-fourths affirmative vote on May 5, 2009, Ordinance 09-4336 never met the threshold for passage on 3 votes as required by Iowa Code 380.3, Plaintiff requests this court to order that Ordinance 09-4336 was defeated. IN THE INTEREST OF JUDICIAL EFFICIENCY, THE FOLLOWING ARGUMENT NEEDS BE READ AND CONSIDERED ONLY IF THE COURT RULES AGAINST PLAINTIFF ON BOTH OF THE ABOVE ISSUES. Issue IIA After changing the boundaries of REZ08-00011 by approximately 20 acres and relying on that change to deny an already filed protest petition, did the City Council violate Iowa Code 414.4, Iowa Code 414.5 or case law by failing to provide a new notice? Argument Statutory requirements as to notice and hearing are mandatory and jurisdictional, and compliance therewith is a prerequisite to valid action by a city council. Bowen v. 9 By failing to rule on the second protest petition, the city has waived it right to reject this petition on the grounds that it did not meet the 20$ threshold under city law. Alternatively, the city must be ordered to provide an immediate calculation to this court. 12 Story County Board of Sumvisors, et al, 209 N.W.2d 5_ p 572 (Iowa 1973). Proper Notice of a potential zoning change is mandatory and must be complied with giving the Cg~$ ~Q~14 AI"ili~28 Council jurisdiction to act. B.& H. Investments, Inc. ,y, .. ~„ City of Coralville, 209 N.W.2d 115 (Iowa 1973) . Issue#~~~i~}~, !( ~~~,(~ notice are appropriate for review by certiorari. Failure of proper notice is grounds for voiding a rezoning ordinance. B.& H. Investments, supra. I. IN CASES INVOLVING PROTEST PETITIONS, IOWA CODE 414.5 REQUIRES A NEW NOTICE AND HEARING FOR ALL CHANGES AND AMENDMENTS . Iowa Code 414.5 is clear and unambiguous regarding a new notice and hearing when there are changes involving a protest petition: The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments.lo Immediately preceding this last sentence is a discussion of the requirements of protest petitions. In that context, the last sentence modifies the two preceding sentences dealing with protest petitions. Therefore, 414.5 requires compliance with the notice and hearing requirements of 414.4 for all cases involving protest petitions, not just some as Defendants argue. The notice and hearing requirements of 414.4 require "at least seven days notice must be given and to If the protest petition was sufficient for the property described in the notice, but insufficient for the property voted on and passed, then the property described in notice and the property described in the ordinance were in fact two separate changes to the city's zoning code. The City's differential treatment of the two properties is an admission that they were separate changes to the zoning code. Although each bore the title REZ08-00011, they did so at different times. 13 in no case shall the public hearing be held earlier tnlI h~ cheduled cit council hearing." Defendah next regularly s Y provided no new notice whatsoever, let alone that `~~c.}~PE ~ 4 AM ~ ~ ~ Z$ would meet the express requirements of 414.4. Defenda~n~~s~~+~~~ thereby violated the notice requirements of 414.4 an~!t~~~~~'~, (~?;~jA last sentence of 414.5. II. CURRENT CASE LAW REQURES A NEW NOTICE AND HEARING WHENEVER THERE ARE SUBSTANTIAL CHANGES TO A PROPOSED REZONING. In cases not involving protest petitions, when events subsequent to publication of notice of a proposed zoning change lead to an amendment that is substantially different from that which is noticed, a new notice and opportunity to be heard may be required. Oliveira v. City of Milwaukee, 624 N.W.2d 117, (Wis. 2001). Courts have considered two issues in deciding whether a new notice should be required: Was the change substantial and would a new hearing accomplish anything other than delay? Under both tests, the changes in this case were substantial. III. A SUBSTANTIAL CHANGE IS EITHER ONE THAT AFFECTS DIFFERENT LANDOWNERS OR ONE THAT AFFECTS THE SA1~ LANDOWNERS IN A DIFFERENT WAY. In Oliveira v. City of Milwaukee, 624 N.W.2d 117, and Herdeman v. City of Muskego, 343 N.W.2d 814, a substantial change was any change that affects different landowners, or any change that affects the same landowners in a different way. Oliveira v. City of Milwaukee, 624 N.W.2d 117, at 123. In the present case, Defendants used the change disclosed on the last day of the public hearing to invalidate a qualifying protest petition filed four weeks before the change was disclosed. Although this change did not affect 14 different landowners, it most certainly did affect th e landowners in a different way: last minute changes t~h rezoning ordinance denied fourteen landowners of t~~~r~i~ ~ ~ Q~ l+: 2$ already filed protest petition and their resulting ric~h~~ ~t~~~ ~~~~ a three-fourths affirmative vote before the rezoningjQYf~y~ ~~~Y.IC~~~~~~!~ ordinance could be enacted. Under the Oliviera and Herdeman test, a change that invalidates a filed protest petition is a substantial change. IV. DURING THE PUBLIC HEARING, DEPENDENTS OWN STAFF TWICE ADMITTED THAT THE CHANGE WAS SUBSTANTIAL. Twice the Defendants' staff d that the changes in this case were substantial. Addressing this change, City planner Bob Miklo stated "we believe this would need to go back to the Planing and Zoning Commission because the, this is a fairly significant change from...from what they reviewed." p 167. Shortly thereafter, City attorney Dilkes concurred with Miklo: If you want to make the changes that Bob is...is discussing, you're going to have to continue the public hearing tonight, and defer the first consideration, to...to give, um, Planning and Zoning a chance to decide whether they want to have a consult with you. Um, so you're not going to act on it tonight either way. P 169 City attorney Dilkes continued: My opinion is, is that if you change the CZA, or you indicate that you want to change the CZAll to make it outlot D, as opposed to rezoning it, and having the condition with Slowthower, then you need to at least given our ordinances have the Planning and Zoning Commission take a look at that. P 184 (emphasis added) ii The CZA was changed seven days later on March 31 and signed April 2. Pp 251- 254. 15 Attorney Dilkes statement "given our ordinances" was ~~ referring to the Iowa City ordinance governing the~~},ty~~~ ~~~`•z$ Council public hearing for zoning map amendments: UJJAA .r ~ !~, In those instances when the city council has r C~-~~~~ an informal consensus on a proposed zoning map~~~~ `~~-rY. lO~d~VA amendment or zoning code text amendment that is contrary to the recommendation of the planning and zoning commission, the city council will defer formal action on the matter until a discussion has take place between the city council and the planning and zoning commission. 14-8D-5 Code of Iowa City, paragraph F.2 (emphasis added) Only a change that is "contrary to" the original proposed rezoning needs to be sent back to the planning and zoning commission. On March 20 Attorney Dilkes held the professional opinion that the change under consideration and later adopted was "contrary to" the original rezoning proposal. Any change that is "contrary to" the original proposal is a substantial change. Two members of the Defndants' own staff expressed opinions that the change was substantial. IV. HAD A NEW NOTICE BEEN PROVIDED, THE SPEECH AT THE SECOND HEARING WOULD NOT GAVE BEEN A SIMPLE REPETITION OF THE FIRST HEARING: THE SECOND PROTEST PETITION WOULD HAVE BEEN TIMELY UNDER 414.5 AND ORDINANCE 09-4336 WOULD HAVE BEEN DEFEATED BY A 5-2 AFFIRMATIVE VOTE. The final consideration of what constitutes a substantial change is whether a new notice and hearing would result in a different outcome or "only in repetitive statements by the same parties, accomplishing no change in the final outcome except delay." See Herdeman v. City of 16 Muskego 343 N.W.2d 814, at 816.12 Plaintiffs have clef demonstrated that had a new notice been provided, the outcome would have changed. The revised protest pe~~(t~i ( (~ ~~ ~ ~ ; 2~ filed May 4 met the requirements of Iowa Code 414.5 wi ~ ~ ~~ ~, c~_~g~ respect to the changed rezoning amendment. Pp 361-378I~` L~YY. ~~"+~'~; definition that protest petition would changed the speech at a second hearing; for it would have compelled a three- fourths affirmative vote; and it would have changed the outcome. Had a new notice been provided, the 5-2 votes would have defeated Ordinance 09-4336, not enacted it. Had a new notice been required, the outcome would have changed. By all legal and reasonable measures of what constitutes a substantial change, the changes made on the last day of the hearing were indeed substantial and therefore required Defendants to provide a new notice and hearing. Having made a substantial change, Defendants failed to provide the notice required by Iowa Code 414.4, compliance with which is mandatory and jurisdictional and is a prerequisite to valid city council action. Bowen, supra. 12 The Herdeman case seems to support Defendants' position. A protest petition was filed, the area being rezoned was reduced, the measure was passed 4-3, and a new notice and hearing were denied. But there is a fundamental distinction between Herdeman and this case. In Herdeman, the change made was the creation of a 180 foot buffer between the protesters' property and that being rezoned. By so doing, the Herdeman Defendants respected the Wisconsin statute authorizing protest petitions by protecting the protest petitioners' legally recognizable interest in adjacent property up to 180 feet. In the present case, Defendants have not respected the protest petition or its underlying purpose. They have provided no buffer, paid no respect to the interests of adjacent landowners, and have attempted to use a process that undermines the very purpose of Iowa Code 414.5. There is another distinction between Herdeman and this case. After the creation of a buffer, the Herdeman petitioners were outside the protected zone and could no longer file a protest petition and compel a three-fourths vote. The outcome of a new hearing would not change. In the present case, Plaintiff and others filed a new protest petition which would have compelled a three- fourths affirmative vote, completely changing the outcome of a new hearing-- Ordinance 09-4336 would have been defeated. 17 CONCLUSION In summary, the Defendants have failed to provide for proper notice and hearing for the revised REZ08-OOOY~~~~~~4 ~~~~'29 required by Iowa Code 414.4, 414.5 and common law. Ci~'`~' C~~F~ iC~~'A CITY. !C'~~A Statutory requirements as to notice and hearing are mandatory and jurisdictional, and compliance therewith is a prerequisite to valid action by a city council. Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 at 572 (Iowa 1973). Wherefore, Plaintiff respectfully requests that this Court void Ordinance No. 09-4336 for lack of Jurisdiction for failing to provide proper notice before on the revised sixty acre tract before passing Ordinance 09- 4336. Finally, because of the multiple and egregious errors by Defendants, Plaintiff prays that this Court assess costs to Defendants. ~ / ~~ ~.~ Ro ert J. eman 4 Tuc on 1 ce Io - ity, owa 52246 Roberthegeman@mchsi.com 391-338-5818 319-530-0553 (cell) 319-668-2491 (fax) Original filed Copies served on the defendants at the Office of the City Clerk of Iowa City, 410 East Washington Street, Iowa City, Iowa 52240 18 Authorities ~ L Iowa Code: 414.4, 414.5, 380.3 2010 JAN 14 APS i I ~ 29 Code of Iowa City: 14-8D-5G,1 14-8D-5F. 22 ~~~~~ ~~'~~`°~~ d~Jb'~~, Cl~Y.1O'~r~ Cases: Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 (Iowa 1973) B.& H. Investments, Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa 1973) OSAGE CONSERVATION CLUB, Appellant, vs. BOARD OF SUPERVISORS OF MITCHELL COUNTY, IOWA, Appellee, 611 N.W.2d 294 (Iowa 2000) Seibert v. Lovell, 61 N.W. 197 (Iowa, 1894) City of Des Moin~ (Iowa, 1991) Monroe Community v. Marion County Oliveira v. City Herdeman v. City 1983) ~s v. City Development Bd. 473 N.W.2d 197 School Dist. Of Marion and Jasper Counties Bd. Of Ed., 103 N.W.2d 746, (Iowa 1960) of Milwaukee, 624 N.W.2d 117, (Wis. 2001) of Muskego, 343 N.W.2d 814, (Wis. App. 1 Title 14 Chapter 8 Article D-5 paragraph G 2 Title 14 Chapter 8 Article D-5 paragraph F.2 CERTIFICATE OF SERVICE (PRIVATE) a~ E ?010 ~AN 14 AEI 11 ~ 29 I certify that PLAINTIFF'S Brief in Suppor o Plaintiff' s Petition for Writ of Certiorari dated ~~`~..r~/c~.~ was served on the City Council of Iowa City and ~~~AC~r~~ ~~g~~ Iowa City by depositing the 2 copies of the original in the US mail postage prepaid on September 23, 2009, addressed to Office of the City Clerk of Iowa City, 410 East Washington Street, Iowa City, Iowa 52240 In the District Court for Johnson County Plaintiff's List of Authorities Robert James Hegeman, Plaintiff ) EQCVO7O796 vs. ~ The City of Iowa City and the ) City Council of Iowa City, ) Defendants ) Iowa Code: 414.4, 414.5, 380.3 Code of Iowa City: 14-8D-5G,1 14-8D-5F.22 ~o~o `',~ ~'~' ,C~~~~ /~.o ~ r ~ ©~ " y ~~ l~.l~~®G~l~ N Cases: ° o ° Bowen v Story County Board of Supervisors, et a1,~~9 ~ ~.. N.W.2d 569 (Iowa 1973) ~.y_ - ~.-•- ,-=t ca ~ B.& H. Investments, Inc. v. City of Coralville, 20~C~.W~ d 115 (Iowa 1973) ~a ;~;, .. OSAGE CONSERVATION CLUB, Appellant, vs. BOARD OF S~'ERV ORS OF MITCHELL COUNTY, IOWA, Appellee, 611 N.W.2d 294 (Iowa 2000) Seibert v. Lovell, 61 N.W. 197 (Iowa, 1894) City of Des Moines v. City Development Bd. 473 N.W.2d 197 (Iowa, 1991) Monroe Community School Dist. Of Marion and Jasper Counties v. Marion County Bd. Of Ed., 103 N.W.2d 746, (Iowa 1960) Oliveira v. City of Milwaukee, 624 N.W.2d 117, (Wis. 2001) Herdeman v. City of Muskego, 343 N.W.2d 814, (Wis. App. 1983) ' Title 14 Chapter 8 Article D-5 paragraph G z Title 14 Chapter 8 Article D-5 paragraph F.2 01-14-10 IP6 In the District Court for Johnson County Plaintiff's Trial Brief Robert James Hegeman, Plaintiff ) EQCV070796 vs. ) The City of Iowa City and the ) ,~,,, 0 City Council of Iowa City, ) o ~, Defendants ) ~ ---~ =~ --~ ~K ~; -~ ---~ r? ~~== r ti, Plaintiff states: `=~'' Introduction & Overview Iowa Code 414.5 confers upon city councils jurisdiction to rezone property. It also gives landowners adjacent to property being rezoned the power to limit that jurisdiction by filing a protest petition to compel a three-fourths affirmative vote: 414.5 Changes -- protest.' The regulations, restrictions, and boundaries may, from time to time, be amended, supplemented, changed, modified, or repealed. In case, however, of a written protest against a change or repeal which is filed with the city clerk and signed . .by the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the change or repeal is proposed, the change or repeal shall not become effective except by the favorable vote of at least three-fourths of all the members of the council. The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments. 1 CG : C !~ The language "shall not become effective except by a favorable vote of at least three-fourths of all the members of the council" is similar to language in other authorizing statutes which has been interpreted to be mandatory and jurisdictional. See Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 at 571 (Iowa 1973); B.& H Investments, Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa 1973); and OSAGE CONSERVATION CLUB, Appellant, vs. BOARD OF SUPERVISORS OF MITCHELL COUNTY, IOWA, Appellee, 611 N.W.2d 294 (Iowa 2000). Failure to comply with the requirement for a three-fourths affirmative vote mandated by 414.5 once a protest petition has been filed is a jurisdictional issue appropriate for review by certiorari. If sustained, failure to comply with 414.5 is a compelling reason to void the rezoning ordinance for lack of jurisdiction. ~ This certiorari action challenges the adoptioncs~f c_.. Ordinance 09-4336 by Defendants. Ordinance 09-4336 ~=? ~ ,~ purportedly adopted a rezoning proposal REZ08-00011 ~_ ca initially an eighty acre tract in Southwest Iowa Cif ~o~ -~ ~ ~s which notice was given. Hearings were held on MarcL~~=h0, s7 March 24 and April 6, 2009. Plaintiff challenges three -- separate actions by defendants, each one of which justifies this Court in voiding 09-4336: I A protest petition meeting all requirements of 414.5 was filed March 10, 2009, triggering the requirement for a three-fourths affirmative vote. Defendants voted 5-2 in favor of Ordinance 09-4336 on April 6, April 20 and May 5, 2009, and have since treated the ordinance as having been passed. Under 414.5, failure to pass a rezoning amendment by three-fourths vote deprived Defendants of jurisdiction to enact 09-4336. 2 II A second protest petition against the substantially changed REZ08-00011 was filed May 4 and met the requirements of Iowa City ordinance 14-8D-5G, thereby requiring a three-fourths affirmative vote at the third consideration on May 5. Because the final vote of 5-2 never met the three-fourths requirement, ordinance 09-4336 never met the requirements for passage defined by Iowa Code 380.3 and therefore never passed.l IIA The area being rezoned was reduced by nearly twenty acres, a substantial change announced on the last day of the public hearing, April 6. The change was made without proper notice and was used to invalidate the March 10 protest petition. Failure to provide a new notice and hearing after a substantial change violated 414.4 and 414.5, depriving Defendants of jurisdictie~ c~ to enact 09-4336. ~~ ~- w Facts ~~ ~ Defendants provided notice for rezoning an 80 `,~ sv tract in southwest Iowa City known as REZ08-00011. ~~035~' Hearings were held March 10, March 24 and April 6, 2009. pp 057,163 & 239. Defendant and other owners of 200 of land within 200 feet from the area originally proposed to be rezoned submitted a protest petition at the March 10 hearing (pp 057, 070, 142-157), which Defendants have admitted. Def Ans., Ct 1, No 4. But On March 31 a new conditional zoning agreement was sent to-the city council, decreasing the area 1 There are three claims in two counts: the Roman numeral identifies the Count, with II.A and II.B being separate claims in Count II. 2 All page references are to Defendants' Certified Return to Writ of Certiorari unless otherwise stated. 3 to be rezoned by approximately 20 acres.3 (pp 251-4) No new notice was provided. Pp 1-378 The first public disclosure that altered 60 acre tract would in fact be the one voted on came on the last day of the hearing, April 6. P 235. Council voted 5-2 in favor of the changed REZ08-00011 on April 6, April 20 and May 5, 2009. Pp 237-8, 313-4 & 340. No vote met the three fourths margin required by Iowa Code 414.5.9 Plaintiff and other landowners filed a second protest petition against. the changed proposal on May 4, the day before the third and final vote. Defendants disregarded this petition. pp 361-378 On May 5, Defendants passed ordinance 09-4336 by the final vote of 5-2. Defendants admit that they have treated Ordinance No. 09-4336 as having been passed. Def Ans., Ct 1, No 6. Count I Issues: 1. Did the Plaintiff's March 10 protest petition meet the requirements of Iowa Code 414.5 to require that Ordinance 09-4336 be passed by a three-fourths vote? 2. If so, did the Defendants have a valid legal reason justifying the passage of Ordinance 09-4336 by a simple N majority vote short of the three-fourths required b~ Iow~ Code 414.5? ~' ~ ~ ~, - .~"~ r ~ t~n `~ f~ `"~ =~ -- ~ ~: ~. ~ s The changes were: (1) The area being rezoned from ID-RS to RS-5 decreased_from 18.58 acres to 0.98 acres, a 95$ decrease. (2) The area being rezoned from RR-1 to RS-5 decreased from 44.29 to 40.13 acres, a 9~ decrease. (4) the area being rezoned from RS-5 to OPD-5 decreased from 79.27 acres to 60.28 acres, a 24~ decrease. (4) A new outlot D was created (20 acres more or less) and now excluded from the original REZ08-00011. Compare original notice p 035 and pp 055 & 0160 with p 235. ° A vote of 5-2 is a 71$ majority vote. 5/7 = 0.714. ~ = 0.75. 0.714<0.75. 4 Argument I. DEFENDANTS HAVE ADMITTED THAT PLAINTIFF'S PROTEST PETITION MET THE RQUIREMENTS OF IOWA CODE 414.5. Iowa Code 414.5 requires (1) that a protest petition be signed by the owners of 200 or more of property within 200 feet of the exterior boundaries of the property for which the rezoning is proposed and (2) that the document be filed with the city clerk at or before the public hearing. Defendants have admitted that plaintiff's protest petition met these requirements: Defendants admit that owners of 20% of land within 200 feet from the area originally proposed to be rezoned did submit a protest petition at the March 10, 2009, City Council meeting during the public hearing on the proposed rezoning. D Ans., Ct.l, No 4. Defendants have admitted that as of March 10, 2009, Plaintiff's protest petition had met the requirements of Iowa Code 414.5. As of that date, Iowa Code 414.5 required that Ordinance 09-4336 be passed by a three-fourths affirmative vote. Each of the three votes on Ordinance 09-4336 had a tally of five votes in favor, two against. In Iowa City, there are seven city council members. Six members must vote in favor of the ordinance to exceed the three-fourths margin required by 414.5. Having failed to meet the express requirements of Iowa Code 414.5, Ordinance No. 09-4336 is not and has never been effective, yet the Defendants have wrongfully treated 09-4336 as having been passed. N II. PLP,INTIFF ESTABLISHED A PRIMA FACIE CASE, SHIFT~tG T~ BURDEN TO DEFENDANTS TO SHOW THAT PASSAGE OF ORDINAN9~ ~~ 4336 BY SIMPLE MAJORITY VOTE AFTER THE FILING OF A P~S~ ...,,~. PETITION COMPLIES WITH 414.5. -~ ~ ~'"~ `~„ r~ ~ 5 ~'' Plaintiff has carried the burden of showing that Plaintiff's protest petition has met the requirements of Iowa Code 414.5 on March 10, thereby triggering the requirement for a three-fourths affirmative vote on Ordinance No. 09-4336 from that time forward. Plaintiff has also carried the burden of showing that Defendants have failed to pass Ordinance 09-4336 by that three-fourths affirmative vote. Finally, Plaintiff has carried the burden of showing that Defendants have treated Ordinance 09-4336 as if it had been passed. Plaintiff has established a prima facie case that Defendants have exceeded their jurisdictional authority to rezone property by not complying with the three-fourths affirmative vote required by Iowa Code 414.5. The burden shifts to the Defendants to show legal cause as to why Ordinance 09-4336 should not be ruled void for want of jurisdiction. III. THERE IS NO LEGAL PRECEDENT FOR DEFENTDANTS' POSITION There is no legal justification for Defendants' position. There is nothing in the Code of Iowa that allows for the three-fourths affirmative vote requirement, once triggered, to be rescinded. Nor are there any Iowa cases that support Defendants` position. However, there is established case law involving petitions and the transfer of jurisdiction between state and local governing bodies that is determinative of this case. IV. UNDER ESTABLISHED IOWA LAW, THE SUFFICIENCY OF PLAINTIFF'S PETITION IS DETERMINED AT THE TIME IT WAS FILED. rv As the present case illustrates, "the sufficie~y of~a petition may change depending on when the determinate ~ ~, y ~.~ ~~ =~ ~.~ w ~." -n c..a ? `~ 6 ~ '~' r`> sufficiency is made."5 Plaintiffs petition was admitted by defendants to be sufficient when filed on March 10, but ruled to be insufficient when measured on May 5 because the area being rezoned had changed in the interval. In the sentinel case of Seibert v. Lovell, the Iowa Supreme Court addressed this important issue of when the sufficiency of a petition should be determined. The case involved petitioners who attempted to withdraw their signatures from a petition that had already been filed: We hold, then, that the question of jurisdiction is to be determined from the petition as it was when filed, and without regard to the subsequent acts of the petitioners. So far as affecting jurisdiction which had already attached was concerned, the protests and remonstrances were of no effect. They were proper to be taken into consideration by the board in passing upon the merits of the petition, but they were not available for any other purpose. It must be remembered that jurisdiction did not attach as of the date when the board acted, but as of the date when the legal petition was filed. The power to act having been conferred upon the board by virtue of a legal petition, it could not be impaired or taken away by the protests, remonstrances, or attempted withdrawals of some of the petitioners. Seibert v. Lovell, 61 N.W. 197, at 199 (Iowa, 1894). See City of Des Moines v. City Development Bd. 473 N.W.2d 197 at 201 (Iowa, 1991) citing Seibert with approval. When a statute provides for jurisdiction to be passed from the state to a county, city or board as a result of a petition, the exact language used may be important. A statute using the language "which has been filed" leaves open an argument that the sufficiency of a protest petition ' ~} G. ~a could possibly be determined at some time after fil cBut ~~ ' ~~ when the statute uses the term "which is filed", the.~~le of .~~ w =~ ~ -~ ~s~ ~- s Brown, Roger, Assistant City Attorney, Des Moines, Letter to Mayor :Tie ~d Members of the Des Moines City Council, July 26, 2006. ~ 7 Seibert would apply and the time for determining the sufficiency of a petition is the time it was filed.6 The language of 414.5 states "In case, however, of a written protest against a change or repeal v~hich is filed with the city clerk ." The time for determining the sufficiency of the Plaintiff's protest petition was when it was filed. Seibert. In their answer, Defendants have admitted that Plaintiff's protest petition was filed on March 10 and was sufficient as of that date. As in Seibert, once jurisdiction is conferred or withdrawn by the filing of a petition, subsequent actions do not change the sufficiency of that petition. The moment Plaintiff's petition was filed on March 10, the Defendants' had jurisdiction to pass ordinance 09-4336 only if passed by a three-fourths affirmative vote. Subsequent changes to the area being rezoned had no effect on the sufficiency of Plaintiff's petition under the rule in Seibert. Any change to the conditional zoning agreement between the City and the developer had absolutely no legal effect on the sufficiency of Plaintiff's protest petition.' Only by suspending this procedure and initiating a new one with a proper notice and hearing could the Defendants hope to escape the requirement for a three-fourths affirmative vote. V. IOWA CODE 414.5 AND PUBLIC POLICY ARE IN AGREEMENT WITH THE ABOVE LINE OF REASONING. Iowa Code 414.5 is in agreement with Seibert, stating that the protest petition is to be measured against "the r.a _~ e Brown, Roger, Assistant City Attorney, Des Moines, Letter to Mayor ~a~n?ie d "~~~ Members of the Des Moines City Council, July 26, 2006. -`'--s A~ ' Were it otherwise, the city could confer unto itself jurisdiction `~'~= - ~-~ unilaterally simply by making late changes in a rezoning proposal anc4--t,~-} W invalidating a previously filed petition. The city would be increasni'gfits~ ~"~ jurisdiction from the requirement to meet a three-fourths affirmative ~ only meeting a simple majority vote. -" ~ 8 ~~ r property for which the change or repeal is proposed." The word proposed in the Black's law dictionary, 8th Edition, means: Proposed regulation. A draft administrative regulation that is circulated among interested parties for comment. A proposed regulation is not the final regulation being voted on, it is the predecessor circulated for comment. A property for which a change or repeal is proposed is not the one being voted on, it is the one circulated among surrounding landowners by public notice for comment at the public hearing. A close reading of Defendants Answer indicates that Defendants have admitted that Plaintiff's protest petition was adequate when measured against the "proposed rezoning": Defendants admit that owners of 200 of land within 200 feet from the area originally proposed to be rezoned did submit a protest petition at the March 10, 2009, City Council meeting during the public hearing on the proposed rezoning. Answer, Ct. 1, No. 4. Were defendants' position upheld, any city council, once a protest petition were filed, could simply look at a protest petition, adjust the boundary at the last minute, and then pass rezoning proposals by a simple majority vote instead of the three-fourths required by 414.5. Sustaining defendants' interpretation of 414.5 and permitting last minute boundary adjustments to invalidate already filed protest petitions would completely undermine the very purpose of Iowa Code 414.5, i.e. to confer important rights on landowners adjacent to property being considered for p .`.:~- _- x' ~ ~ --': --- ~~ c-: w :E~ -~ 9 ~- A~ ri' .~- _ rezoning.8 Defendants' interpretation of 414.5 is contrary to established rules of statutory construction. To construe a statute a court must view its purpose to be subserved and place on it a reasonable or liberal construction which will best effect its purpose rather than one which will defeat it. Monroe Community School Dist. Of Marion and Jasper Counties v. Marion County Bd. Of Ed., 103 N.W.2d 746, (Iowa 1960). Defendants' position undermines the purpose of 414.5, Plaintiff's position upholds it. Conclusion Plaintiffs filed a protest petition meeting the requirements of Iowa Code 414.5 on March 10, triggering the requirement that Ordinance 09-4336 be passed by a three- fourths affirmative vote. Three times Defendants voted 5-2 in favor, every vote short of the required three-fourths affirmative vote. Compliance with the three-fourths affirmative vote of Iowa Code 414.5 is mandatory and jurisdictional, failure of which deprived the Defendants of jurisdiction to act on Ordinance No. 09-4336. Wherefore, Plaintiff respectfully requests that this Court void Ordinance No. 09-4336 for lack of jurisdiction. N _d ~' - -..• c ~. < ~ ==. ;~;, ~'==-t :~ ~, f--; w s__ -~ c=~ ~ .~- n~ ,~'y e Defendants would have this court rule that last minute changes are fair, that those changes can by relied on to invalidate an already filed protest petition, and that it was sufficient that surrounding landowners, none of whom received official notice of the altered rezoning proposal, had sufficient time to file an amended protest petition between the time the changes to REZ08-00011 were announced on April 6 and the time the hearing was closed less than an hour later. Aright conferred by an Iowa Statute that requires notarized signatures of approximately 14 different property owners that begins running without notice and closes within an hour is no right at all. 10 Count II Issue Did Defendants, by taking no action on the second protest petition, fail to comply with their own city code? ARGUMENT The Plaintiff and other landowners filed the second protest petition at 8:28 A.M. on May 4. Pp 361-378. The final vote on ordinance 09-4336 came on the evening of May 5 and was again 5-2. Although plaintiff believes the second protest petition exceeded 200 of the revised 60 acre tract, the Defendants never ruled on the sufficiency of this petition. Plaintiff agrees the second petition was too late under 414.5, which requires the protest petition to be filed "at or before the public hearing" which closed April 6. However, Defendants apparently did not consider their own city code, which contains no such time limitations. Title 14 Chapter 8 Article D-5 of the Iowa City Code states: G. Protests: If a protest against such amendment is presented in writing to the city clerk, duly signed and notarized by the owners of twenty percent (200),,,, or more of the area of the lots included within,..the area for which the amendment is proposed or by ~ ~ a~: owners of twenty percent (20%) or more of the 3s.~ :~~ ,~ property which is located within two hundred ()~ ~- of the exterior boundaries of the area for whi~he amendment is proposed, such amendment shall re~t"~ e~ the favorable vote of three-fourths (~) of the°y- sv members of the city council for passage. ~ i Under the rule in Seibert above, the sufficiency of the second petition was determined as of 8:28 AM May 4, nearly two full working days before the third and final vote on May 5. There being no time limitation as to when a protest petition must be filed, the petition was timely filed before 11 the final vote on May 5. Plaintiff's second protest petition filed May 4 triggered the requirement for a three- fourths majority vote.9 The 5-2 vote on May 5 was therefore insufficient to pass Ordinance 09-4336 on the third reading. When a proposed ordinance or amendment fails to receive sufficient votes for passage at any consideration or vote thereon, the proposed ordinance or amendment shall be considered defeated. Iowa Code 380.3 Ordinance 09-4336 must be voided for lack of sufficient votes for passage on the third vote. Wherefore, because Defendants failed to pass Ordinance 09-4336 by a three-fourths affirmative vote on May 5, 2009, Ordinance 09-4336 never met the threshold for passage on 3 votes as required by Iowa Code 380.3, Plaintiff requests this court to order that Ordinance 09-4336 was defeated. N d IN THE INTEREST OF JUDICIAL EFFI ~~ CIENCY, THE ~ ° ~ ~ ~; ..,... FOLLOWING ARGUMENT NEEDS BE READ AND CONSIDER' w ~- ONLY IF THE COURT RULES AGAINST PLAINTIFF ONT OF THE ABOVE ISSUES . c~=-~ I s sue I IA ~=~~ ~ `~'' ~°- _ After changing the boundaries of REZ08-00011 by approximately 20 acres and relying on that change to deny an already filed protest petition, did t he City Council violate Iowa Code 414.4, Iowa Code 414.5 or c ase law by failing to provide a new notice? Argument Statutory requirements as to notice and hearing are mandatory and jurisdictional, and compliance therewith is a prerequisite to valid action by a city council. Bowen v. 9 By failing to rule on the second protest petition, the city has waived it right to reject this petition on the grounds that it did not meet the 20$ threshold under city law. Alternatively, the city must be ordered to provide an immediate calculation to this court. 12 Story County Board of Supervisors, et al, 209 N.W.2d 569 at 572 (Iowa 1973). Proper Notice of a potential zoning change is mandatory and must be complied with giving the City Council jurisdiction to act. B.& H. Investments, Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa 1973). Issues of notice are appropriate for review by certiorari. Failure of proper notice is grounds for voiding a rezoning ordinance. B.& H. Investments, supra. I. IN CASES INVOLVING PROTEST PETITIONS, IOWA CODE, 414.5 REQUIRES A NEW NOTICE AND HEARING FOR ALL CHANGES AND N AMENDMENTS . ° o ~, ~ ~~',. Iowa Code 414.5 is clear and unambiguous rega~g~ new notice and hearing when there are changes invol~ €r~ protest petition: ~ ~ -; .~, rv 1 =~~ .. ~-' _.._ The protest, if filed, must be filed before or at the public hearing. The provisions of section 414.4 relative to public hearings and official notice apply equally to all changes or amendments.lo Immediately preceding this last sentence is a discussion of the requirements of protest petitions. In that context, the last sentence modifies the two preceding sentences dealing with protest petitions. Therefore, 414.5 requires compliance with the notice and hearing requirements of 414.4 for all cases involving protest petitions, not just some as Defendants argue. The notice and hearing requirements of 414.4 require "at least seven days notice must be given and 10 If the protest petition was sufficient for the property described in the notice, but insufficient for the property voted on and passed, then the property described in notice and the property described in the ordinance were in fact two separate changes to the city's zoning code. The City's differential treatment of the two properties is an admission that they were separate changes to the zoning code. Although each bore the title REZ08-00011, they did so at different times. 13 in no case shall the public hearing be held earlier than the next regularly scheduled city council hearing." Defendants. provided no new notice whatsoever, let alone that which would meet the express requirements of 414.4. Defendants thereby violated the notice requirements of 414.4 and the last sentence of 414.5. II. CURRENT CASE LAW REQURES A NEW NOTICE AND HEARING WHENEVER THERE ARE SUBSTANTIAL CHANGES TO A PROPOSED REZONING. In cases not involving protest petitions, when events subsequent to publication of notice of a proposed zoning change lead to an amendment that is substantially different from that which is noticed, a new notice and opportunity to be heard may be required. Oliveira v. City of Milwaukee, 624 N.W.2d 117, (Wis. 2001). Courts have considered two issues in deciding whether a new notice should be required: Was the change substantial and would a new hearing accomplish anything other than delay? Under both tests„the changes in this case were substantial. q o -~-: c a ~ ~ ~.. c-~ -- - ~.... III. A SUBSTANTIAL CHANGE IS EITHER ONE THAT AFFECT~~-, w DIFFERENT LANDOWNERS OR ONE THAT AFFECTS THE SAME LWN$RS IN A DIFFERENT WAY. ~~ ~ In Oliveira v. City of Milwaukee, 624 N.W.2d 117, arc Herdeman v. City of Muskego, 343 N.W.2d 814, a substantial change was any change that affects different landowners, or any change that affects the same landowners in a different way. Oliveira v. City of Milwaukee, 624 N.W.2d 117, at 123. In the present case, Defendants used the change disclosed on the last day of the public hearing to invalidate a qualifying protest petition filed four weeks before the change was disclosed. Although this change did not affect 14 different landowners, it most certainly did affect the same landowners in a different way: last minute changes to the rezoning ordinance denied fourteen landowners of their already filed protest petition and their resulting right to a three-fourths affirmative vote before the rezoning ordinance could be enacted. Under the Oliviera and Herdeman test, a change that invalidates a filed protest petition is a substantial change. IV. DURING THE PUBLIC HEARING, DEPENDENTS OWN STAFF TWICE ADMITTED THAT THE CHANGE WAS SUBSTANTIAL. Twice the Defendants' staff d that the changes in this case were substantial. Addressing this change, City planner Bob Miklo stated "we believe this would need to go back to the Planing and Zoning Commission because the, this is a fairly significant change from..from what they reviewed." p 167. Shortly thereafter, City attorney Dilkes concurred with Miklo: If you want to make the changes that Bob is...is discussing, you're going to have to continue the public hearing tonight, and defer the first consideration, to...to give, um, Planning and Zoning a chance to decide whether they want to have a consult with you. Um, so you're not going to act on it tonight either way. P 169 City attorney Dilkes continued: My opinion is, is that if you change the CZA, or you indicate that you want to change the CZAll to make it outlot D, as opposed to rezoning it, and having the condition with Slowthower, then you need to at least given our ordinances have the Planning and o Zoning Commission take a look at that. P 184 ® ~, (emphasis added) r~c•-j ~- ~' ~~ ~ ~~ c-~ ~: -- ~...~. ..:,; ~ , w ~~ ~r~ -o The CZA was changed seven days later on March 31 and signed Apri Pp~51- 254. = ~~ tV '"' 15 N Attorney Dilkes statement "given our ordinances" was referring to the Iowa City ordinance governing the City Council public hearing for zoning map amendments: In those instances when the city council has reached an informal consensus on a proposed zoning map amendment or zoning code text amendment that is contrary to the recommendation of the planning and zoning commission, the city council will defer formal action on the matter until a discussion has take place between the city council and the planning and zoning commission. 14-8D-5 Code of Iowa City, paragraph F.2 (emphasis added) Only a change that is "contrary to" the original proposed rezoning needs to be sent back to the planning and zoning commission. On March 20 Attorney Dilkes held the professional opinion that the change under consideration and later adopted was "contrary to" the original rezoning proposal. Any change that is "contrary to" the original proposal is a substantial change. Two members of the Defndants' own staff expressed opinions that the change was substantial. IV. HAD A NEW NOTICE BEEN PROVIDED, THE SPEECH AT THE SECOND HEARING WOULD NOT HAVE BEEN A SIMPLE REPETITION OF THE FIRST HEARING: THE SECOND PROTEST PETITION WOULD HAVE BEEN TIMELY UNDER 414.5 AND ORDINANCE 09-4336 WOULD HAVE BEEN DEFEATED BY A 5-2 AFFIRMATIVE VOTE. The final consideration of what constitutes a substantial change is whether a new notice and hearing would result in a different outcome or "only in repetitive statements by the same parties, accomplishing no change in the final outcome except delay." See Herdeman v. City of a c~ a ~~ ~ a '~ --? E'7 W 16 ~ ~ :_~ .. < rv N Muskego 343 N.W.2d 814, at 816.12. Plaintiffs have clearly demonstrated that had a new notice been provided, the outcome would have changed. The revised protest petition filed May 4 met the requirements of Iowa Code 414.5 with respect to the changed rezoning amendment. Pp 361-378 By definition that protest petition would changed the speech at a second hearing; for it would have compelled a three- fourths affirmative vote; and it would have changed the outcome. Had a new notice been provided, the 5-2 votes would have defeated Ordinance 09-4336, not enacted it. Had a new notice been required, the outcome would have changed. By all legal and reasonable measures of what constitutes a substantial change, the changes made on the last day of the hearing were indeed substantial and therefore required Defendants to provide a new notice and hearing. Having made a substantial change, Defendants failed to provide the notice required by Iowa Code 414.4, compliance with which is mandatory and jurisdictional and is a prerequisite to valid city council action. Bowen, supra c~ ~~ ~ ~ ~ ~ ®.... w -~ ~ ~ -.n ~~ ~ ~ ~. -~ { rv i2 The Herdeman case seems to support Defendants' position. A protesi~petit.i~n was filed, the area being rezoned was reduced, the measure was passed 4-3, aIIt~ a new notice and hearing were denied. But there is a fundamental distinction between Herdeman and this case. In Herdeman, the change made was the creation of a 180 foot buffer between the protesters' property and that being rezoned. By so doing, the Herdeman Defendants respected the Wisconsin statute authorizing protest petitions by protecting the protest petitioners' legally recognizable interest in adjacent property up to 180 feet. In the present case, Defendants have not respected the protest petition or its underlying purpose. They have provided no buffer, paid no respect to the interests of adjacent landowners, and have attempted to use a process that undermines the very purpose of Iowa Code 414.5. There is another distinction between Herdeman and this case. After the creation of a buffer, the Herdeman petitioners were outside the protected zone and could no longer file a protest petition and compel a three-fourths vote. The outcome of a new hearing would not change. In the present case, Plaintiff and others filed a new protest petition which would have compelled a three- fourths affirmative vote, completely changing the outcome of a new hearing-- Ordinance 09-4336 would have been defeated. 17 CONCLUSION In summary, the Defendants have failed to provide for proper notice and hearing for the revised REZ08-00011 as required by Iowa Code 414.4, 414.5 and common law. Statutory requirements as to notice and hearing are mandatory and jurisdictional, and compliance therewith is a prerequisite to valid action by a city council. Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 at 572 (Iowa 1973). Wherefore, Plaintiff respectfully requests that this Court void Ordinance No. 09-43.36 for lack of Jurisdiction for failing to provide proper notice before on the revised sixty acre tract before passing Ordinance 09- 4336.. Finally, because of the multiple and egregious errors by Defendants, Plaintiff prays that this Court assess costs to Defendants. Original filed ~~f t~ Ro ert eman 4 Tuc on 1 ce Io -pity, owa 52246 Roberthegeman@mchsi.com 391-338-5818 319-530-0553 (cell) 319-668-2491 (fax) Copies served on the defendants at the Office of the City Clerk of Iowa City, 410 East Washington Street, Iowa City, Iowa 52240 N 0 p' o .~. C') ` W .. --! C ? t"` ~~ ~ 18 ~; tV `=~J N Authorities Iowa Code: 414.4, 414.5, 380.3 Code of Iowa City: Cases: 14-8D-5G,1 14-8D-5F.22 Bowen v. Story County Board of Supervisors, et al, 209 N.W.2d 569 (Iowa 1973) B.& H. Investments, Inc. v. City of Coralville, 209 N.W.2d 115 (Iowa. 1973) OSAGE CONSERVATION CLUB, Appellant, vs. BOARD OF SUPERVISORS OF MITCHELL COUNTY, IOWA, Appellee, 611 N.W.2d 294 (Iowa 2000) Seibert v. Lovell, 61 N.W. 197 (Iowa, 1894) City of Des Moines v. City Development Bd. 473 N.W.2d 197 (Iowa, 1991) Monroe Community School Dist. Of Marion and Jasper Counties v. Marion County Bd. Of Ed., 103 N.W.2d 746, (Iowa 1960) Oliveira v. City of Milwaukee, 624 N.W.2d 117, (Wis. 2001) Herdeman v. City of Muskego, 343 N.W.2d 814, (Wis. App. 1983) ...-! n """~ r~,. ~~ ..-~ t Title l4 Chapter 8 Article D-5 paragraph G N ~'7. _.____ W f+,~ '"~. N z Title 14 .Chapter 8 Article D-5 paragraph F.2 CERTIFICATE OF SERVICE (PRIVATE) I certify that PLAINTIFF'S Brief in Support of Plaintiff's Petition for Writ of Certiorari dated 1/13/2010 was served on the City Council of Iowa City and the City of Iowa City by depositing the 2 copies of the original in the US mail postage prepaid on September 23, 2009, addressed to Office of the City Clerk of Iowa City, 410 East Washington Street, Iowa City, Iowa 52240 N t.."7 Q ~~ C.7 ~ . ~ ~_ ~ ~...: [~ ~ w ~"Y'j ~`\~~ -~ ~8 ' ' y [~ . , { . http://grantwood.wordpress.com/ ...................................................................................................................................... January 2010 In this Issue Over the past few months, the Grant Wood neighborhood has been busy seeking grant funds and resources to provide educational workshops/events for everyone in the neighborhood, as well as funding to purchase computers and roller skates so that even more opportunities can be available. So far, the neighborhood has received almost $2700 for skates, $6000.00 for computers, and $1600 to host workshops and other events. SKATE AND SOAR WORKSHOPS/ROLLER SKATING The first workshop, "Money Management t01: Tax Preparation Ideas, Saving Money and Spending Less!" will be held Saturday, January 30 at 2:00 PM in the Grant Wood School Cafeteria. The class will be taught by Phyllis Zalenski of the Iowa State Extension Office. Because it is not expected that the roller skates will have arrived at the time, that activity will not be available for the children. All of the future workshops will be held in the school cafeteria and roller skating will be available to grade school aged children. Please...all children 5 and under must be accompanied by a responsible adult. Future Skate and Soar events planned: • Computer Literacy -February Z7* • Resume Building - March 27* • Gardening -April 10* • Nutrition/Outdoor grilling -May 22* *ALL DATES TENTATIVE -More specific information will be available in the February newsletter. Skates will be available for these events with roller skating being hosted in the Grant Wood Gym. Last year the GWNA hosted a number of workshops and events that were open to the whole community and will be continued this year. We feel we have a wonderful school, gym and neighborhood and would like to have more people come visit. • Pei Care Fair -Saturday, March 6 from 1-4 PM • Grant Wood Family Safety Day -Saturday, April 24, 1-3 PM Other topics and tentative dates include: • Home Repair/decorating -February 13 • Gardening -April 17 We will be discussing these events further at the next GWNA meeting on Thursday, January 21 at 6:30 PM. We would love to hear your ideas and resources! Teen Dance Night So you think you can dance? We have the place, we have the music, you have the talent! Every Saturday night, the Grant Wood Neighborhood Association (GWNA) and City High FasTrac (Henri Harper) will host these events with music provided by a DJ. first Dance: Saturday, January 30, 2010 from 7:30 PM to 10:00 PM Location: Grant Wood Gym Admission: $2 -requires student ID to attend At least once a month we will also have a Skate and Dance night, although it will be another 4-6 weeks before skates arrive. Skates will be provided by GWNA unless you bring new skates (or ones that have never been used Front Page: • Winter/Spring Workshops Planned • Community Wide Events Page 2: • What's Going On in theNeighborhood • City Council News Page 3: • General News Page 4: • GWNA Meeting Agenda Teen Dance Night continued... outside) without metal exterior parts, as metal scratches the floor when stopping or falling. If Skate and Dance nights are a big hit, the GWNA will purchase more skates and host more frequent Skate and Dance nights. GWNA will sell popcorn, pop, candy, and pizza at all dances. As we raise money we can continue to support these event and purchase additional skates along with decorations for special dance events. Special Dance Event (i.e. Valentine's Day) will be hosted with decorations and special lighting. Flowers may be purchased at the dance. Some nights could include dance talent (i.e. hip-hop group) or dance contests. Thanks to the United Way of Johnson County and City of Iowa City's Program for Improving Neighborhoods grant! We hope to make this a success. Grant Wood Mission Statement ............................................................................... The Grant Wood Neighborhood Association (GWNA) exists to improve the overall quality of life in the Grant Wood neighborhood. GWNA achieves its mission by: Building relationships by bringing its families together through social (Harvest Party, movie nights, Family Fun Nights, etc.) events as well as educational opportunities (neighborhood meetings and workshops), enhancing safety & security, making Improvements and using our public parks and facilities to promote volunteer activism. What's Going On in the Neighborhood City Council News IOWA CITY CURFEW ORDINANCE The ordinance prohibits persons under designated ages from being in any public place between set hours. The ordinance defines "public place" to include stores, parking lots, parks, playgrounds, streets, alleys, and sidewalks, as well as areas to which the general public has access, such as common hallways in apartment buildings. This includes juveniles being in vehicles in parking lots of the public locations. The focus of this ordinance is to address the issue of unsupervised juveniles becoming the victim of a crime and/or becoming involved in problems during the overnight hours. Different ages have different hours. The hours of the curfew are as follows - (ages included) • 13 or younger -between 10:00 PM and 5:00 AM • 14 through 15 -between 11:00 PM and 5:00 AM • 16 through 17 -between 12:00 Midnight and 5:00 AM Exceptions to the ordinance include: • The juvenile is accompanied by a parent or guardian. • The juvenile is traveling between home and their place of employment. (one hour before or after) • The juvenile is traveling to or from a religious, school, or political activity. (one hour before or after) • The juvenile is traveling from one state to another through Iowa City. • The juvenile is on an emergency errand affecting life or serious injury for a responsible adult. The ordinance is punishable as a simple misdemeanor punishable by a $50 fine plus costs and state surcharge. It is the intention of the Iowa City Police Department that until March 1, 2010 officers shall warn persons in violation of this ordinance in lieu of citing them. However, officers will retain the right to issue citations in the event conditions warrant it. Note: This constitutes merely a summary of Iowa City Ordinance 09-4376, adapted December 14, 2009, and effective December 23, 2009, creating Iowa City Ordinance 8-6-2, and does not contain the full ordinance. The complete text is available at wwwicgov.org or at the Iowa City Clerk's Office. Questions, in writing, can be directed to Eric Goers, Assistant City Attorney, at the Iowa City Attorney's Once, 410 E. Washington, Iowa City, IA 52240, or via a-mail at eric-goers@iowa-city. org. NEW COUNCIL MEMBERS BEGIN DU I Matt Hayek was unanimously elected by his fellow council members to serve as the new Mayor of Iowa City. Current Council members are Connie Champion, Mike Wright, Ross Wilburn, Terry Dickens, Susan Mims, and Regenia Bailey. City Council meeting schedule and agendas are located at: http•//www icgov orb/default/apps/GEN/calendar.asp • CITY COUNCIL BUDGET SESSIONS There has been a great deal of news coverage concerning upcoming Council budget discussions and decisions. During January 2010, the City Council has several budget work sessions scheduled. The public can attend any of these sessions to observe. A public hearing on the budget is scheduled for February 16, 2010. The February meetingwill be the opportunity for citizens to voice their opinions regarding the budget. Final adoption is scheduled for March 2, 2010. Please note that all scheduled meetings are subject to change, as posted on vvww.ic~ov.or~. L Mentonng upportunnies • CHILDREN OF PROMISE MENTORING At our December GW Neighborhood Meeting, Angie Blanchard- Manning was our guest speaker. Angie is coordinator of the Children of Promise Mentoring Program. We also had the pleasure of visiting with two young men and their mentors as a way of learning more about the benefits of this volunteer program. Due to weather, we had a very small group at our December meeting, so we will be inviting Angie back in the spring to share more about her program. In the meantime, Angie is looking for several adult mentors for many special young adults who want a positive and supportive person in their life. This is a wonderful opportunity to make a difference in a young person's life-as well as your own. Angie's contact information is noted below. FEMALE MENTOR WANTED! 8th grade female who wants to get out of the house and do something fun! MALE MENTORS WANTED! 8th grade male youth who enjoys anything outdoors--from hiking to skate boarding 9th grade male youth who is upbeat and positive-enjoys learning new skills and exploring the community 10th grade male youth who is laid back, calm and enjoys watching movies, yard work, and would like to learn Spanish 10th grade male youth who enjoys watching sporting events • NEWS FROM OFFICER JOREY BAILEY A baby boy, Sutton Allen Bailey, was born to Crime Prevention Officer Jorey Bailey and his wife, Lauren, on January 5, 2010. Everyone is doing great. Contact Angie Blanchard-Manning Angelina.blanchard-manning@iowa.gov Program Coordinator (Johnson County) (319) 540-4195 • WEB SITE UPDATE Grant Wood Neighborhood Association Web Site Update - ~i ~llgrantwood wordoress com/ Ongoing updates and additions are made to the GWNA web site. Currently, we have web pages for monthly neighborhood association newsletters, photo gallery, Officer Jorey, City Council News, GWNA Contacts, Neighborhood Events, free Youth Activities calendar, Make A Difference ideas, Iowa City links, and South East Neighborhood Collaborative link. If you have any suggestions or ideas for our web site, contact Cindy. • MAKE A DIFFERENCE IN OUR NEIGHBORHOOD Here's our next installment of our 'Make a Difference' idea list. Be the kind of neighbor you would want to have next door or across the street. Little things make a difference. • Check with a neighbor when you run errands to see if they need something • Help a neighbor with snow removal, especially if you own a snow blower • Invite someone to dinner • Pick up litter • Take a plate of cookies to someone • Check on those who live alone, especially during winter • ENCOURAGING YOUTH AS POSITIVE ROLE MODELS Responsibilityandaccountability isessential tobecome abetter person, neighbor, community activist, mentor and friend. Your younger brothers and sisters need you. They need positive role models. You can change lives by positive behavior and support for others. You can give hope to a younger person that may not feel important. Tutoring youth can also make a significant contribution to their academic world, hoping to improve their academic performance means they can start to dream of bigger and better lives. Start by asking the children you serve to incorporate the idea of helping their parents, siblings or neighbors in meaningful ways. Challenge them to get a calendar and have them right down two things they did for another person each week. These things should be done without expectation of reward. Remind them that reward come to them when they give of themselves. Give them an example of your own life. • TEEN VOLUNTEERS NEEDED We need your help to form a dance committee interested in creating ideas, planning for special dance nights, promotion and advertising, designing posters, etc. This committee can also assist GWNA in developing a teen forum that can meet at the same time as our neighborhood association meeting each third Thursday of the month from 6:30-8:00 PM. We're looking for ideas/projects/programs for after-school, evening, weekend and summer fun. We also need teens to form a volunteer-based group to support these efforts. As Henri Harper says "It's not about having fun; it's about giving back to your community." • VOLUNTEERISM IS REWARDING Start a life as a loving person. Traits of a loving person include compassion, empathy, giving and forgiving. You might even change the life of a few adults too! Tiara and Brandy (you know who you are) changed my life by exposing my life that don't have all of the answers. They taught me how to go about building better youth events. They put my heart back where it belongs. Their endless support and volunteerism has been a gift to myself and many others. If you can't make it to the neighborhood meeting, feel free to call me, Therese McKenzie at 471-8836 or Henri Harper at 936-6611. • NEIGHBORHOOD ART PROJECT? The City of Iowa City's Public Art program has funding available for neighborhoods to create, with the assistance of an artist, a "neighborhood art" project. Some of the examples you may be familiar with are the Longfellow Historic Markers, Northside Houses and Goosetown Geese (installed on top of the street signs) and the Wetherby Park Shelter project with globe reliefs and "weathervane." Jill Harper (Henri Harper's wife) is currently working on a neighborhood art project at Pheasant Hill Park in Iowa City and has expressed interest in working with neighbors in the Grant Wood neighborhood to create a project. Jill will be at the Februrary 18 GWNA meeting to talk a bit more about a project and come up with some ideas. Please consider attending! ~i • Committee Members • .................................................................. Event Coordinator Therese McKenzie 471-883 6 Communication Coordinator Cindy Roberts ci ndy-robertsc~uiowa.edu Newsletter Coordinator Laura McDougall tauramcdougall@ymail.com Website Coordinator Jamie Good Grant Wood Neighborhood Association Meeting Thursday, January 21, 2010 6:30-8:OOPM Grant Wood School Cafeteria Chuck Connerly, Director and Professor of the Graduate Program in Urban and Regional Planning at the University of Iowa and students of his spring semester "Community Development" class will be available to discuss their interest and focus in working with the Grant Wood neighborhood as part of their class work this spring. • Therese McKenzie will present the numerous activities planned for the next few months that will be sponsored by the neighborhood associations and would love to hear additional ideas! Grant Wood Garage Salei't GWNA has been very successful over the past three years hosting their annual garage sale and using those proceeds for projects... the most recent being the splash pad. We need someone who would be willing to coordinate this event, as well as folks who are willing to work both the evening before and day of the event. The garage sale is usually scheduled for the first or second weekend of April (2nd/3rd or 9/10>. If you think you might be interested, please contact Therese McKenzie at 471-8836. Grant Wood Neighborhood Association Office of Neighborhood Services City of Iowa City 410 E. Washington Street Iowa City, Iowa 52240 resorte Standard US Postage PAID Iowa City, Iowa our neighborhood newsletter Is produced by your neighborhood association. The Office of Neighborhood Services of the Clty of Iowa City prints and malls the newsletters but Is not responsible for the quality or the content, although newsletters must meet the approved Neighborhood Newsletter Guidelines. This newsletter has been sent to all residents in the Grant Wood and Saddlebrook areas. IP8 MINUTES PRELIMINARY IOWA CITY BOARD OF ADJUSTMENT DECEMBER 16, 2009 - 5:00 PM EMMA J. HARVAT HALL MEMBERS PRESENT: Caroline Sheerin, Le Ann Tyson, Will Jennings, Robert Anderson MEMBERS EXCUSED: Barbara Eckstein STAFF PRESENT: Sarah Walz, Sara Greenwood Hektoen OTHERS PRESENT: Pete McNally RECOMMENDATIONS TO CITY COUNCIL: None. CALL TO ORDER: The meeting was called to order by Chairperson Caroline Sheerin at 5:00 p.m. ROLL CALL: Tyson, Sheerin, Anderson, and Jennings were present. CONSIDERATION OF THE MINUTES FOR OCTOBER 14, 2009: Sheerin offered corrections to the minutes. Tyson moved to approve the minutes as amended. Anderson seconded. The motion carried 4-0. SPECIAL EXCEPTIONS: Postponed due to weather event to January 13 meeting. Iowa City Board of Adjustment October 14, 2009 Page 2 of 4 BOARD OF ADJUSTMENT INFORMATION: Walz explained that the board would consider another cell phone application in January. The board expressed some uncertainty about its scope of review. Previously cell towers were limited to commercial, industrial, or public zones. The zoning code now allows location of cell towers in the ID zones by special exception. Walz explained the reason that this change was made was to provide coverage to more residential areas. Hektoen explained the limits of the Board's review. She stated that the City Council, as the legislative body, establishes the criteria. Jennings asked whether the Board could advocate for changes to the criteria. Hektoen said the Board could advocate independently of a specific application. Jennings asked an additional question about antennas. Walz explained the difference between the criteria for locating antennas on existing structures, which is provisional use that is reviewed administratively, and the criteria that apply to the location for a cell tower, which is an application to the Board of Adjustment. The tower or other proposed structure is what triggers the special exception. Hektoen explained that while some of the criteria are broad, as long as the board can articulate the facts on which it is basing its decision, and provide substantial evidence, the decision was defensible. The Board cannot deny location based on the fact that another company already provides coverage to the area. Jennings clarified that the term "service" in the criteria refers to the individual cell provider. Anderson asked whether the Board could ask for a higher tower to create opportunity for co- location. Walz indicated that the desire for co-location needed to be weighed against other considerations such as aesthetics. Walz explained how the appearance of cell towers have changed over time to become less obtrusive and the staff has advocated for the least obtrusive designs. Pete McNally, a representative for I-Wireless, explained that the use of wireless services have changed over time. Fifteen years ago there was no system and people expected pockets in service because they were not relying on cell service. Now that there is a system, people are demanding more services. As more people use wireless devices and want service in more areas, providers cannot have pockets in the service area. This has called for more, shorter towers, in areas that have always been problematic. McNally explained that different carriers have different band frequencies carry further and more strongly than others. Those companies that got into cell service earlier got the better frequencies. Other carriers have problem pockets in their service because their frequency does not carry as far. Those Not every carrier needs a tower in the same spot. McNally indicated that the board is doing its job by making the carrier find the best spot possible. Cell providers would rather find a spot that is allowed administratively, such as co-location or mounting antennas to an existing structure, than have to go through a long process. He thinks the City's policy makes cell companies do their job better. Iowa City Board of Adjustment October 14, 2009 Page 3 of 4 Jennings asked that the code be reviewed to be sure that it is up-to-date with current technology. He felt that providers' claims of need for improved service overshadowed the other criteria. Walz and Hektoen explained recent legislation that requires Boards to make decisions regarding cell tower locations within 150 days. ADJOURNMENT: Jennings moved to adjourn. Tyson seconded. 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