Claim Dodds, Molo, Mulgrew, etcIN THE IOWA DISTRICT COURT
DUBUQUE COUNTY
DODDS RIVER TERMINAL, INC.,
(TIN 42-1437946);
MOLO OIL COMPANY (TIN
42-0658564);
MULGREW OIL CO. (TIN
42-0427430);
D R B E PROPERTIES, L.L.C. (TIN
36-4301032); and
IOWA OIL COMPANY (TIN
42-0333760),
Plaintiffs
Vs.
TI-I~ CITY OF DUBUQUE, IOWA, and
the CITY COUNCIL OF THE CITY OF
DUBUQUE, Iowa,
Defendants.
ACCEPTANCE OF SERVICE
Case No. 0 1311 EQCV__
The undersigned, Jeanne F. Schneider, City Clerk for the City of Dubuque,
Iowa, does hereby accept service of the Original Notice and Petition.,,attached thereto
on behalf of the Defendants in the above-caption matter on this/d~ day of May,
2002.
/s/ Karen M. Chesterman, Deputy
Jeanne F. Schneider
City Clerk of the City of Dubuque, Iowa
In the IOWA DISTRICT COURT for DUBUQUE COUNTY
DODDS RIVER TERMINAL, INC.,
(TIN 42-1437946); MOLO OIL
COMPANY (TIN 42-0658564);
MULGREW OIL CO. (TIN
42-0427430); D R B E PROPERTIES,
L.L.C. (TIN 36-4301032); and
IOWA OIL COMPANY (TIN
42-0333760),
Plaintiffs
Vs.
THE CITY OF DUBUQUE, IOWA, and
the CITY COUNCIL OF THE CITY OF
DUBUQUE, Iowa,
Defendants.
CaseNo. 0 1311 EQCV 0
93 O/0
ORIGINAL NOTICE
TO THE ABOVE-NAMED DEFENDANT(S):
CITY OF DUBUQUE, IOWA, and
CITY COUNCIL OF THE CITY OF DUBUQUE
c/o Jeanne F. Schneider, City Clerk
City Hall
Dubuque, IA 52001
YOU ARE NOTIFIED that a Petition was filed on the 10 day of May, 2002, in the office of the Clerk of
this Court naming you as the Defendants in this action. A copy of the Petition is attached to this Notice. The
attorney for the Plaintiffs are Michael J. Coyle, and Douglas M. Henry, Fuerste, Carew, Coyle, Juergens &
Sudmeier, P.C., whose address is 200 Security Building, 151 West 8th Street, Dubuque, Iowa 52001, and whose
phone number is (563) 556-4011; facsimile number (563) 556-7134.
You must serve a Motion or Answer within twenty (20) days after service of this original notice upon
you and within a reasonable time thereafter file your motion or answer with the Clerk of Court for Dubuque
County County, at the county courthouse in Dubuque, Iowa. If you do not, judgment by default may be
rendered against you for the relief demanded in the petition.
If you require the assistance of auxiliary aids or services to participate in court because ora disability,
immediately call your district ADA coordinator at (563) 589-4448. (If you are heating impaixed, call Relay
Iowa TTY(sEAL) at 1-800-735-2942). ~r~.~.f. '-~' ~"}f4,* ~,:,: ~-'7" ~,~1
CLERK OF COURT
Dubuque County Courthouse
Dubuque, Iowa
IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO
PROTECT YOUR INTERESTS.
IN THE IOWA DISTRICT COURT
DUBUQUE COUNTY
DODDS RIVER TERMINAL, INC.,
(TIN 42-1437946);
MOLO OIL COMPANY (TIN
42-0658564);
MULGREW OIL CO. (TIN
42-0427430);
D R B E PROPERTIES, L.L.C. (TIN
36-4301032); and
IOWA OIL COMPANY (TIN
42-0333760),
Plaintiffs
Vs.
THE CITY OF DUBUQUE, IOWA, and
the CITY COUNCIL OF THE CITY OF
DUBUQUE, Iowa,
Defendants.
PETITION
Case No. 0 1311 EQCV
COME NOW the Plaintiffs Dodds River Terminal, Inc., (Dodds), Molo Oil
Company ("Molo"), Mulgrew Oil Co. ("Mulgrew"), D R B E Properties, L.LiC.,
("Mutual Wheel"), and Iowa Oil Company ("IOCO"), and for Petition against the
Defendants, state:
COMMON ALLEGATIONS
1. The Plaintiffs are residents of Dubuque County, Iowa; the real property
described herein is located in Dubuque County, Iowa; the Defendant City of Dubuque,
Iowa ("City"), is an Iowa municipality located in Dubuque County, Iowa; the
Defendant City Council of the City of Dubuque, Iowa ("Council"), is the governing
body ofthe City.
2. The PlaintiffDodds is the tenant of the Defendant City of Dubuque, Iowa,
occupying the following described real property in Dubuque County, Iowa, under the
following leases, respectively:
A tract of land southerly and abutting the lease of Dubuque Tank
Terminal Company as outlined in Par. 3 of lease and agreement between
City of Dubuque through its Board of Dock Commissioners and
Dubuque Tank Terminal Company dated December 7, 1963 ---
Commencing with the northwest comer of the Dock House
of the City of Dubuque Board of Dock Commissioners,
thence along the north face of said Dock House to the
northeast comer thereof a distance of 79.5 feet, thence
southerly and along the east face of said Dock House a
distance of 77.5 feet to the point beginning of the property
to be described, thence continuing southerly along said east
face of said Dock House a distance of approximately
135.83 feet, more or less, to the right-of-way line of the
Julien Dubuque Bridge (this right-of-way is 50 feet distant
and normal to the center line of said bridge), thence
easterly and along said right-of-way of said bridge a
distance of 110 feet, more or less, thence northerly and
parallel to the said east face of said Dock House to the
southerly line extended of the aforesaid Dubuque Tank
Terminal Company lease, thence South 87 degrees 43 ½
minutes West, 110 feet to the point of beginning, excepting
the clearance area around pier No. 18 of the Julien
Dubuque Bridge which is required by the Iowa Highwa,v
Commission and is to remain flee and clear of any further
fill or loadings which might or could cause settlement of
the said bridge pier;
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under one certain Lease and Agreement dated May 31, 1958, as amended by
October 4, 1968 amendment, for a term, upon exercise of all options by the
Tenant, to expire May 31, 2018, together with an option to lease additional
property as provided within said lease; and
Commencing at the Southeast comer of Block 6 in Dubuque
Harbor Company's Addition to the City of Dubuque, Dubuque
County, Iowa;
Thence South 82° East 154.05 feet;
Thence South 3° 38' East 226 feet to the point beginning;
Thence South 87° 42' 30" West 121.87 feet;
Thence South 3° 23' 25" West 30.2 feet;
Thence North 87° 42' 30" East 104.12 feet;
Thence South 2° 17' 30" East 192.76 feet;
Thence North 87° 42' 30" East 101.5 feet;
Thence North 2° 17' 30" West 222.73 feet;
Thence South 87° 42' 30" West 80.83 feet to the point of
beginning; with an area of 25,683.7 square feet,
under one certain lease dated April 10, 1979, as amended January 29, 2002, for
a term to expire March 31, 2008.
3. The Plaintiffs Molo, Mulgrew, Mutual Wheel and IOCO are the owners of
the following described real property in Dubuque County, Iowa, respectively:
A. Molo -- 45 Jones Street:
Lot 1 of Lot 2 of Lot 1 of the Subdivision of
"The A. A. Cooper Wagon Works Block" in
the City of Dubuque, Iowa, according to the
recorded plat thereof in the Book of Plats
#27, page 152, records of Dubuque County,
Iowa.
B. Mulgrew- 85 Terminal Street
Lot lA, Lot 2 of Block 15, Lot 2 of Block
16, Lot 2 of Block 16A, Lots 1 and 2 of
Block 17, and Lot 2 of Block 18, all in
Dubuque Harbor Company Addition, and Lot
2 of Lot 1 of Block 16A of Dubuque Harbor
Company Addition & Vacated Charter Street
from the west line of vacated Water Street to
the east line of Lot 1, Block 15, and Lot 1,
Block 18 of Dubuque Harbor Improvement
Company's Addition, all in the City of
Dubuque, Dubuque County, Iowa.
C. Mutual Wheel - 30 Jones Street
Lot 2 of Chemical Subdivision, in the City of
Dubuque, Iowa, according to the recorded
plat thereof; situated in the City of Dubuque,
Dubuque County, Iowa, excepting therefrom
that portion taken for road purposes which
consisted of approximately 2,334 SF leaving
a remainder of approximately 51,134 SF
D. Iowa Oil Company - 100 East First Street
Lots 1, 2,3, 4, 5, 6, 7 and 9 in Block 6, Dubuque
Harbor Company's Addition, in the City of
Dubuque, Iowa, according to the recorded plats
thereof.
4. At all relevant times prior to April 15, 2002, the Plaintiffs' uses of their
above described properties were lawful, permitted uses under the then-existing zoning
classification HI (Heavy Industrial) according to the Zoning Ordinance of the City.
5. On April 15, 2002, the Defendant City, acting by and through the Defendant
Council, adopted City of Dubuque Ordinance No. 31-02 ("the Ordinance"),
reclassifying all the property described within the Ordinance as a Planned Unit
Development District ("PUD").
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6. All of the properties of the Plaintiffs described above are located within
Zone B as defmed within the Ordinance; if the Ordinance is given effect against these
Plaintiffs, each of the existing principal uses of the properties of the Plaintiffs will
become a nonconforming use, and the Plaintiffs will be subjected to material and
substantial limitations upon their existing uses of their properties and will be required
to modify their properties, all to the Plaintiffs' immediate, substantial harm and
irreparable damage.
PETITION FOR WRIT OF CERTIORARI
7. The adoption of the Ordinance by the Defendant Council and the Defendant
City is illegal and invalid as to each of these Plaintiffs for the following reasons and on
the following grounds:
A. The decision of the Council adopting the Ordinance was arbitrary,
capricious or unreasonable, because the harm to the Plaintiffs is
immediate and severe, while the benefit dreamed of by the City and the
Council is speculative and remote;
B. The adoption of the Ordinance imposes upon the Plaintiffs a
disproportionate share of the cost or burden of the development dreamed
of by the City and the Council;
C. The adoption of the Ordinance is an improper use of zoning authority as
an illegal substitute for condemnation by power of eminent domain;
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D. The imposition of the reclassification upon these Plaintiffs without
condenmation denies these Plaintiffs substantive due process, contrary to
the 5th and 14th Amendments to the Constitution of the United States
and the Article I, Section 18, of the Constitution of the State of Iowa;
E. The adoption of the Ordinance constitutes an improper condemnation or
taking of the Plaintiffs' property solely for aesthetic considerations;
F. The adoption of the Ordinance constitutes an improper use of the zoning
power not to preserve but to burden or destroy existing lawful uses of
Zone B, including Plaintiffs' properties, contrary to the principles
declared by the Iowa Supreme Court in the case ofF. H. Uelner
Precision Tools & Dies, Inc., vs. City q£Dubuque, Iowa, 190 N.W.2nd
465 (Iowa 1971)
8. As to the PlaintiffDodds, the adoption of the Ordinance by the Defendants is
further illegal and invalid because the Defendants are thereby unilaterally attempting to
amend or alter the existing leases described above so as to deprive the PlaintiffDodds
of the substantial value of its leases without compensation or mutual consideration, the
Defendants are thereby breaching an implied warranty of quiet enjoyment, and the
Defendants are estopped or equitably barred by reason of their existing lease
agreements with the PlaintiffDodds bom altering the terms and conditions of the
PlaintiffDodds' occupancy of the premises.
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9. The Plaintiffs were and are aggrieved by the actions of the City and the
Council, described above.
10. For the reasons set forth above, Plaintiffs are entitled to a Writ of Certiorari
reviewing the acts of the Defendants and to an order herein setting aside or declaring
invalid as to these Plaintiffs the wrongful acts of the Defendants in adopting the
Ordinance.
WHEREFORE, Plaintiffs pray that a Writ of Certiorari issue ~om the Iowa
District Court for Dubuque County commanding the Defendants to certify to this Court
a transcript of the record and proceedings relating to the adoption of the Ordinance,
that this Court permit the Plaintiffs opportunity for discovery according to the Iowa
Rules of Civil Procedure, that this Court permit the Plaintiffs opportunity to submit
additional evidence as provided by Iowa Rule of Civil Procedure 1.1410, that this
Court determine a time and place for oral argument and prescribe reasonable notice to
the Defendants regarding such argument; that upon hearing of such matter and
evidence, an order be entered herein setting aside and declaring invalid the
Defendants' actions in adoption of the Ordinance as to these Plaintiffs, and that
Plaintiffs have such other relief as may be just and equitable, including the costs of this
action.
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DECLARATORY JUDGMENT
11. As demonstrated by the allegations of paragraph 1 - 10, above, a dispute
exists between the Plaintiffs and the Defendants,. to wit:
A. Plaintiffs contend that the Defendants' adoption of the Ordinance was
illegal and invalid as to these Plaintiffs, for all the reasons stated in
Paragraphs 6 and 7 above; and
B. Defendants contend that the Defendants' adoption of the Ordinance was
legal and valid as to these Plaintiffs.
12. The controversy between the parties regarding the rights, status or legal
relations affected by the Ordinance and the dispute between the Plaintiffs and the
Defendants are proper subjects for determination and declaration of the rights, stares or
legal relations thereunder, according to Iowa Rule of Civil Procedure 1.1102.
WHEREFORE, Plaintiffs pray that the Court determine the rights, stares or
legal relations of the Plaintffs and the Defendants with respect to the Ordinance, by
declaring that the Ordinance is invalid as to these Plaintiffs.
INJUNCTION
13. If the Defendants attempt to enforce the Ordinance against these Plaintiffs,
the Plaintiffs will suffer irreparable interference with their property rights and use of
their properties described above.
14. No adequate remedy exists at Law for such interference with or deprivation
of the use of the Plaintiffs' properties.
15. In order adequately to protect the Plaintiffs from the illegal and invalid
application of the Ordinance, it is necessary that this Court enjoin the Defendants from
any direct or indirect attempt to impose the Ordinance upon the Plaintiffs, or to enforce
the Ordinance against the Plaintiffs.
WHEREFORE, the Plaintiffs pray for the entry ofa fmal order enjoining the
Defendants from any direct or indirect attempt to impose the Ordinance upon the
Plaintiffs, or to enforce the Ordinance against the Plaintiffs.
FUERSTE, CAREW, COYLE,
JUERGENS & SUDMEIER, P.C.
By: /s/ Michael J. Coyle, 000001036
By: /s/ Douglas M. Henry, 000002309 ' ~ _
D
200 Security~Building
151 West 8th Street
Dubuque, Iowa 52001
Phone: (319) 556-4011
Fax: (319) 556-7134
ATTORNEYS FOR PLAINTIFFS.
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