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409 Burch Street Eminent Domain Proceedings 5 19 08THE CITY OF DUBUQUE Masterpiece on the Mississippi MEMORANDUM BARRY LINDAHL CITY ATTORNEY To: Mayor Roy D. Buol and Members of the City Council DATE: May 15, 2008 RE: 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, at the May 5, 2008 City Council meeting recommended and Council voted to place that resolution on the agenda for the City Council meeting on May 19, 2008. Anew Notice of Intent to Approve Acquisition of the Property by Eminent Domain was sent to Mr. White on May 6, 2008. Enclosed is a resolution authorizing the commencement of eminent domain proceedings to acquire the property. I would request that the City Council adopt the resolution authorizing the commencement of eminent domain proceedings to acquire the property. BAL:tIs Enclosure cc: Michael C. Van Milligen, City Manager David Harris, Housing & Community Development Director John White F:\USERS\tsteckle\Lindahl\White John, City of Dubuque vs\MayorCouncil_NewResolutionAuthorizingEmDomain_051508.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 Preparers Barry A. Lindahl Suite 330 Harbor View Place Dubuque, IA 52001 (563) 583-4113 RESOLUTION NO. 170 -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 19th f May, 2008 Attest: Kevin S. Fir tahl, Assistant ity Clerk day of May , 2008. Roy . Buol, Mayor NOTICE OF INTENT TO APPROVE ACQUISITION OF PROPERTY BY EMINENT DOMAIN To: John White 435 Burch Street Dubuque, Iowa You are hereby notified tha# the City Council of the City of Dubuque, Iowa will meet on the 19th 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 §§ 66.45, 68.54) 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 §66.45) 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, 68.7, 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 § 66.4A) 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 eanne F. Schneider, City Clerk THE CITY OF DU1UE MEMORANDUM Masterpiece on the Mississippi TRACEY STECKLEIN PARALEGAL MEMO To: Kevin Firnstahl City Clerk DATE: February 27, 2017 RE: In the Matter of Lot 2 in Burch Place in the City of Dubuque, Iowa/No. 195 Affidavit of Barry A. Lindahl and Dismissal of Application for Condemnation Kevin: Attached for your file is the original recorded Affidavit of Barry A. Lindahl, recorded as Instrument no. 2017-00001831 on February 14, 2017, relating to the above -referenced subject. Attached to the Affidavit and made part of this recorded document is the Dismissal of Application for Condemnation, No. 195. The City Attorney's Office will retain a copy of this recorded document in our file. Thank you. F:\Users\Laserfiche Legal\White, John (409 Burch Street)\Firnstahl_RecordedAffidavit&DismissalOfCondemnationApplication_022717.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 tsteckle@cityofdubuque.org litENTIONEWEIRENioiliiloll Doc ID: 008593290009 Type: GEN Kind: CONDEMNATION Recorded: 02/14/2017 at 11:38:31 AM Fee Amt: $47.00 Page 1 of 9 Revenue Tax: $0.00 Dubuque County Iowa John Murphy Recorder F11e2017--00001831 Prepared by: Barry A. Lindahl 300 Main Street Suite 330 Dubuque Iowa 52001 (563.583.4113) Return to: Barry A. Lindahl 300 Main Street Suite 330 Dubuque Iowa 52001 (563.583.4113) IN THE SHERIFF'S OFFICE IN DUBUQUE COUNTY, IOWA IN THE MATTER OF LOT 2 IN BURCH PLACE IN THE CITY OF DUBUQUE, IOWA No. 195 by THE CITY OF DUBUQUE, IOWA, Applicant AFFIDAVIT OF BARRY A. LINDAHL State of Iowa Dubuque County I, Barry A. Lindahl, after being duly sworn upon oath, state and depose as follows: 1. I am Senior Counsel for the City of Dubuque, Iowa. 2. I previously served as City Attorney for the City of Dubuque, Iowa. 3. As City Attorney, I filed an Application for Condemnation in the Sheriffs Office in Dubuque County, Iowa, No. 195, on behalf of the City of Dubuque, Iowa, on August 8, 2008, "In the Matter of Lot 2 in Burch Place in the City of Dubuque, Iowa", a copy of which is attached. 4. Said Application for Condemnation was recorded as File no. 2008- 00011464 on August 11, 2008 at the Dubuque County Recorder's Office, Dubuque County Iowa. $y1.DD Cry/ 5. A Dismissal of Application for Condemnation was filed in the Sheriff's Office in Dubuque County, Iowa, No. 195, on October 21, 2008, "In the Matter of Lot 2 in Burch Place in the City of Dubuque, Iowa." 6. Said Dismissal of Application for Condemnation has never been recorded at the Dubuque County Recorder's Office, Dubuque County Iowa, and the Dubuque County Sheriff's Office advises it has never recorded the entire record, and cannot locate said condemnation file. 7. Attached is a true executedcopy of said Dismissal of Application for Condemnation in this matter. ;Barry A. Lindahl STATE OF IOWA ) ss: COUNTY OF DUBUQUE ) Subscribed and sworn to before me this 14* day of FE NNW! , 2017. TRACEY L STECKLEIN Commission Number 716018 r My Comm, Exp. 44'1111 Apt.e.to Suthur, Notary PublState of Iowa F:\Users\Laserfiche Legal\White, John (409 Burch Street)WffidavitOfLindahDismissalOfApplicationForCondemnation_021017.docx 2 • IN THE SHERIFF'S OFFICE IN DUBUQUE COUNTY, IOWA IN THE MATTER OF LOT 2 IN BURCH PLACE IN THE CITY OF DUBUQUE, IOWA No. by THE CITY OF DUBUQUE, IOWA, Applicant APPLICATION FOR CONDEMNATION TO: The Chief Judge of the First Judicial District IIl1I1 1 IIiII! II H1 lIlI I111111Itmm1 Doc ID: 006110010006 Type: GEN Recorded: 08/11/2008 at 02:27:27 PM Fee Amt: $32.00 Page 1 of 6 Revenue Tax: $0.00 Dubuque County Iowa Kathy Flynn Thurlow Recorder F11e2008 00011464 YOU ARE HEREBY NOTIFIED that the Applicant City of Dubuque, Iowa, desires to take, acquire, and condemn fee title to the property hereafter described. The Applicant desires to acquire the property sought to be condemned for nuisance abatement pursuant to Iowa Code § 364.12A. 1. PROPERTY TO BE ACQUIRED; PUBLIC USE OR PURPOSE FOR THE TAKING. The property sought to be acquired is shown on the attached Exhibit A. Acquisition of the property is to abate a public nuisance as determined by the City Council of the City of Dubuque, Iowa on October 8, 2007. The property to be acquired is legally described as follows: LEGAL DESCRIPTION Fee simple interest: Lot 2 in Burch Place in the City of Dubuque, Iowa Property Address: 409 Burch Street, Dubuque IA 2. NAMES OF RECORD OWNERS AND HOLDERS OF LIENS AND ENCUMBRANCERS OF THE PROPERTY. The names and addresses of all record owners and holders of liens and encumbrancers are as fallors: • Titleholders: • John H. White 436 Burch Street Dubuque IA Lienholders, Encumbrancers, and Leaseholders: East Dubuque Savings Bank 3999 Pennsylvania Avenue Dubuque IA 52003 Melissa Knorr Radtke 825 South Grandview Avenue Dubuque IA 52003 John W. Perry d/b/a Perry Construction & Hauling 14362 N. Cascade Road Dubuque IA 52003 Gary E. Nauman 674 Wilson Street Dubuque IA 52001 41111 Kenneth Cook 4662 Camelot Drive Dubuque IA 52002 Barbara Cook 4662 Camelot Drive Dubuque IA 52002 Peter Wyatt 108 West 7th Street Muscatine IA 52761 Angela Wyatt 108 West 7th Street Muscatine IA 62761 Dubuque County, Iowa c/o Dubuque County Attorney Dubuque County Courthouse 720 Central Avenue Dubuque IA 52001 Chairperson, Dubuque County Board of Supervisors Dubuque County Courthouse 720 Central Avenue Dubuque IA 52001 State of Iowa c/o Iowa Attorney General 1305 E. Walnut Street Des Moines IA 50319 Saphire LLC 750 Oakland Ave. #202 Oakland CA 94611 3. LANDS NECESSARY TO ACHIEVE THE PUBLIC PURPOSE LANDS PROPOSED TO BE ACQUIRED FOR THE PROJECT. AND The Applicant asserts that the property constitutes the necessary minimum amount of land to achieve the purpose herein identified, and that no portion of the property is being acquired as an uneconomic remnant. 4. GOOD FAITH EFFORTS MADE BY THE CITY TO NEGOTIATE THE PURCHASE OF THE PROPERTY. • • • The Applicant represents and warrants that it has undertaken the following activities in attempting to negotiate the purchase of the property from the property owner: Offers to the property owner on February 13, 2008 and May 7, 2008 to purchase the property for the fair market value established by resolution of the City Council of the City of Dubuque, Iowa pursuant to appraisal. The property owner has not responded to the offers. NOW, THEREFORE, pursuant to a regularly adopted resolution by the City Council of the City of Dubuque, Iowa, YOU ARE HEREBY REQUESTED to appoint a Compensation Commission to appraise the damages caused by this appropriation, such Commission to consist of six commissioners who shall be residents of Dubuque County, Iowa. YOU ARE FURTHER REQUESTED to give written notice to the undersigned as soon as the Commissioners have been appointed. Dated this day of JU „ 2008. CITY OF r° BUQUE, IOWA By arry A. Lindahl, Esq. ty Attorney 300 Main Street, Suite 330 Dubuque IA 52001 Tele 563 583-4113 Fax 563 583-1040 AP ED this t d day of `C , 2008 Chief Judge of the First Judicial District of Iowa Son Faster ", 3udge•First Judiciat Th5ttit • • Exhibit A Deo . iD: mets1g�6tm04 A.: FL5 R.Bari.; 20/14400F it 11;20121M1 1•42het: $ .p00 pFVVoae 0i i WINNKathyPDaint LyA6 TYtI, IW N4aerd... FEI.2005-00049349 FAE!MED 114 1W ENOHEERE @ 5URNEVNI5 R6. 4155 PE/S1511.14451.4 Ave'., DUDUAUr. 1004, (5431 534-2414 o -lit` LOT 4 SUB. OF LOT t -3 -IL -78 AND [OT 2 1r LI. 7T PLAT OF SURVEY BURGH PLACE W THE WY OF DUBUQUE, IOWA ��. esffi �y�g9 s�. ,iFllk11'11iHi, NORTH GRAPHIC SCALE 40 8D �.m 40' IJ1: NAY HAVE BEER REOSJCER t?, 171 � r •— L0T iau69 SQ FT - .4A Orr LOT 1-2-2 CEORGE B. BURCH NUB. 1'I LOT 3 1EGEN6 \_ 1vE ---". PLAT BOUNDARY 1 S. MUM 5/e IRON ROO 0/ ?LAM CAP CAP NO. AS NOTED O FOUND t" MON rim{ UNLESS Naha 0 SET 5fB" ItOR ROD Wf PLASIIC CAP 80. 1Z5 1 O SET NAIL IN CONI WALK ( ) RECORD 8IFQRb1ATICAI R.O.W. RIORT-OF-WAY UR' 1 2 aMD+'s 0u SIAL E.= THIS SURVEY IS SUBJECT TO EASEMENTS, CDV0II1 SERVITUDES, RESERVATIONS. RESTRYCT1ON E AND RNGHTS-CF-WAY OF RECORD ANO NOT OF AECdR0. OATS OF SURVEY: MAY VIDO SURVEYED Jam: JoiN MITE 1,Z2. •sa+.�'� LOT F-2 _ jL7d' 5'� LOT 1 AM Up r E • TANNER 1._ LS 12631; 2 .1nw� 1 N n 11- rz-a 1 wa IIT mass. BAWL WE Q 01/31/!! mutat SEER =QED At NI BEAT. SMMS 1 AIC 2 TOTAL AREA IMBED: 19,870 S0. FT. PROPRET0RS JCRN H. 14181E MICHAEL .L AWI2 NARA A. POWERS rlizi RW C'i1NIERSde Fane. I18oi Rt4rmsN 4111 D.N..4. LA 52052 551.551.0154 t/At4;2.5. u • tesef Or.r4 A mN!MI star FIAT N0. L1-14-1. O!Fo&D iR PI0& X0.00711 g DAIS 11-111,04 54152E 1 d 8 5e40eV itW07nWF:.wfawaE 1 NEAk0." a:Mtn 70T1/15 tA4eI tIDtE1156 IDD& iT VIM i A,P41EQ 118 ZaC PQAED RIMY WM IRS FaF0eRU NT NS ON MOM NY ME=T KRUM . 51915M511311 AFe IFI4Tt AD A RAY t MED UM 328414158 01.15* 2E IAMS OE FIE ITAIE W Dat. 1151 241 DitSUIW 110 UNKY Sik P8 qvyti, a �r aaL ANO '" 4WIe11pM daNff NA 100 t PPEPARp 011 IliYINf2tr:ER.3 k SURWPORTP.A 4S25 PROISILYANA AVE, °waif, iglu, PLAT OF SURVEY BURCH PLACE IN THE CITY OF DUBUQUE, IOWA 024 2.18-24114 50RVEY0P5 CER919CATE 1, John M.Troniner, hereby, certify that 1 am lidensed land serve& in the State of Iowa, and that the following tract of real estate was surveyed by me or liMer my direct personal superehdon, to wit; • LOT 4, GEORGE B. atiRcil 51zuh4slaL LoT 1-5 pc LOT 2-5 GF WC% LOT 7+1, LOT M A110 LOT 2-1 OE 14tERAL LoT 75 111 IRE CITY arausla1F-01:31k Mile slinky was performed for the purpose of platting Said Teal estate henceforth to be known. as Lot 1 and Lot 2 of Sixth Place in the City of tiltlUquo, Iowa, containing 19,970 Satiate feet, more or lees, and subject oeasementw. re%ervotions, reOr i01 onS; tind 44-,c1f-eny of record and not o ecord, the plat of which is attached hereto and mode a part o thio certificate, rigusvmairamt WritY9R5, I,,. keno, Irwin°. 4122POkiiciaitnt2 /4s. Aipatio% 51222 241222,2414 1221.4twl. IA • iiku0 Gipas. 'WAINW RAT 09..154k-11 0,21-a&T G22 -111-22,21 IUT 2 ef 2 A‘20,051\027800411122111-0IL • • CERTIFICATE In accord with Iowa Code Section 66.37, I certify under penalty of perjury and pursuant to the laws of the State of Iowa that the attached Application for Condemnation has been approved by the Chief Judge of the First Judicial District. CITY OF ++r BUQUE, IOWA By rry A. Lindahl, Esq. City Attorney Filed in my office at Dubuque, Iowa this 1/ day of ©`Fa , 2008. ,, —_ ,a..,.af $7 80.4',© keo /t ok i_ Ken Runde Sheriff of Dubuque County, Iowa • IN THE SHERIFF'S OFFICE IN DUBUQUE COUNTY, IOWA IN THE MATTER OF LOT 2 IN BURCH PLACE IN THE CITY OF DUBUQUE, IOWA No. 195 by THE CITY OF DUBUQUE, IOWA, Applicant DISMISSAL OF APPLICATION FOR CONDEMNATION The City of Dubuque, Iowa, Applicant, hereby dismisses the Application for Condemnation. Dated this 21st day of October, 2008. CITY OF D BUQUE, IOWA By arry A. Lindahl, Esq. ity Attorney 300 Main Street, Suite 330 Dubuque IA 52001 Tele 563 583-4113 Fax 563 83-1040 Filed in my office at Dubuque, Iowa this ot( day of Kenneth J.,unde Sheriff of Dubuque County, Iowa F:IUSERSItstecklelLindahl\White John -409 8urchlDismissal0fAppiicationForCondemnation_102108.doc , 2008.