409 Burch Street Eminent Domain Proceedings 5 5 08THE CITY OF
DUB E
Masterpiece on the
BARRY LIND
CITY ATTOR
To:
DATE:
RE:
MEMORANDUM
Mayor Roy D. Buol and
Members of the City Council
April 25, 2008
409 Burch Street
At the April 7, 2008 City Council meeting, the City Council adopted Resolution No.
112-08 Authorizing The Commencement Of Eminent Domain Proceedings For The
Acquisition Of Certain Real Property Owned By John White At 409 Burch Street In The
City Of Dubuque, Iowa.
Mr. White has filed a lawsuit in the Iowa District Court for Dubuque County seeking to
enjoin the condemnation proceedings. One of the grounds in the lawsuit is that Mr.
White "was not given an opportunity to voice his objection to the proposed acquisition of
the property at the City Council meeting on April 7, 2008."
Although I recall Mr. White being present at the April 7, 2008 City Council meeting at the
time the item was called by the City Clerk and the Mayor, I do not believe that Mr. White
made any effort to request to be heard. However, because Iowa law does provide that
he has the right to voice objection to the proposed acquisition of the property, and to
avoid prolonged litigation over that issue, I am recommending that the resolution be
placed back on the agenda for the City Council meeting on May 19, 2008 and that a
new Notice of Intent to Approve Acquisition of the Property by Eminent Domain be sent
to Mr. White.
BAL:tIs
Enclosure
cc: Michael C. Van Milligen, City Manager
David Harris, Housing & Community Development Director
F:\USERS\tsteckle\Lindahl\White John, City of Dubuque
vsWlayorCouncil_NewResolutionAuthorizingEmDomain&NewNotice_042508.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 /FAX (563) 583-1040 / EMAIL balesq@cityofdubuque.org
NOTICE OF INTENT TO APPROVE ACQUISITION OF PROPERTY BY
EMINENT DOMAIN
To: John White
435 Burch Street
Dubuque, Iowa
You are hereby notified that the City Council of the City of Dubuque, Iowa will
meet on the 19t" day of May, 2008, at 6:30 o'clock p.m. at the Historic Federal
Building, 350 West 6th Street, Dubuque, Iowa, to consider the adoption of a
resolution, a copy of which is attached hereto, authorizing the City to acquire the
following property by eminent domain:
Lot 4 in Geo. B. Burch's Subdivision in the City of Dubuque, Iowa,
according to the recorded plat thereof.
You have the right to attend the meeting and to voice objection to the proposed
acquisition of the property.
Just as the law grants certain entities the right to acquire private property, you as
the owner of property have certain rights. You have the right to:
Receive just compensation for the taking of property. (Iowa Const., Article I,
Section 18)
An offer to purchase which may not be less than the lowest appraisal of the
fair market value of the property. (Iowa Code §§ 68.45, 66.54)
Receive a copy of the appraisal, if an appraisal is required, upon which the
acquiring agency's determination of just compensation is based not less than
10 days before being contacted by the acquiring agency's acquisition agent.
(Iowa Code §68.45)
When an appraisal is required, an opportunity to accompany at least one
appraiser of the acquiring agency who appraises your property. (Iowa Code
§ 66.54)
Participate in good faith negotiations with the acquiring agency before the
acquiring agency begins condemnation proceedings. (Iowa Code §66.3(1))
If you cannot agree on a purchase price with the acquiring agency, a
determination of just compensation by an impartial compensation commission
and the right to appeal its award to district court. (Iowa Code §§ 66.4, 66.7,
and 66.18)
A review by the compensation commission of the necessity for the
condemnation if your property is agricultural land being condemned for
industry; (Iowa Code § 6B.4A)
Payment of the agreed upon purchase price, or if condemned, a deposit of
the compensation commission award before you are required to surrender
possession of the property. (Iowa Code §§ 66.25, 66.54(11))
Reimbursement for expenses incidental to transferring title to the acquiring
agency. (Iowa Code §§ 66.33, 66.54(10))
Reimbursement of certain litigation expenses: (1) if the award of the
compensation commissioners exceeds 110 percent of the acquiring agency's
final offer before condemnation; and (2) if the award on appeal in court is
more than the compensation commissioner's award. (Iowa Code § 66.33)
At least 90 days written notice to vacate occupied property. (Iowa Code
§ 66.54(4))
Relocation services and payments, if you are eligible to receive them, and the
right to appeal your eligibility for and amount of payments. (Iowa Code
§ 316.9)
The rights set out in this Notice are not claimed to be a full and complete list or
explanation of an owner's rights under the law. They are derived from Iowa Code
Chapters 6A, 6B and 316. For a more thorough presentation of an owner's rights,
you should refer directly to the Iowa Code or contact an attorney of your choice.
Dated: May 6, 2008
Jeanne F. Schneider, City Clerk
Preparers Barry A. Lindahl Suite 330 Harbor View Place Dubuque, IA 52001 (563) 583-4113
RESOLUTION NO. -08
AUTHORIZING THE COMMENCEMENT OF EMINENT DOMAIN PROCEEDINGS
FOR THE ACQUISITION OF CERTAIN REAL PROPERTY OWNED BY JOHN WHITE
AT 409 BURCH STREET IN THE CITY OF DUBUQUE, IOWA
WHEREAS, the City of Dubuque (City) intends to acquire certain real property
owned by John White (Owner) legally described as follows (the Property):
Lot 4 in Geo. B. Burch's Subdivision in the City of Dubuque, Iowa, according to
the recorded plat thereof;
WHEREAS, Iowa law requires that City must make a good faith effort to
negotiate with Owner to purchase the Property before proceeding with condemnation;
WHEREAS, City caused an appraisal of the Property to be made and the
appraised value of the Property is $34,000;
WHEREAS, City has made an offer to purchase the Property for not less than its
fair market value;
WHEREAS, City has been unable after good faith negotiations to reach an
agreement with Owner for the acquisition of the Property;
AND WHEREAS, the City Council finds that there is a reasonable expectation
the City will be able to achieve its public purpose, comply with all applicable standards,
and obtain the necessary permits.
NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE CITY OF
DUBUQUE, IOWA, AS FOLLOWS:
Section 1. Resolution No. 112-08 is hereby rescinded.
Section 2. The City Manager and the City Attorney are hereby authorized to
commence eminent domain proceedings for the acquisition of the Property and to take
such further action as may be necessary for the acquisition of the Property.
Passed, adopted and approved this T day of , 2008.
Roy D. Buol, Mayor
Attest:
Jeanne F. Schneider, CMC, City Clerk