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Claim - Suit - Adams Co. vs CitIn the IOWA DISTRICT COURT for DUBUQUE COUN~ ~t~. ~ (~ THE ADAMS COMPANY, an Iowa Corporation, Plaintiff, VS. THE CITY OF DUBUQUE, IOWA, AND THE CITY COUNCIL OF THE CITY OF DUBUQUE, Iowa, Defendant. EQVC ??;©© G ORIGINAL NOTICE TO THE ABOVE-NAMED DEFENDANT(S): City of Dubuque and City Council of the City of Dubuque, Iowa Jeanne Schneider, City Clerk 50 West 13th Street Dubuque, IA 52001 YOU ARE NOTIFIED that a Petition was filed on the 9th day of May 2002, in the office of the Clerk of this Court naming you as the Defendant in this action. A copy of the Petition are attached to this Notice. The attorney for the Plaintiff(s) is Allan J. Carew, 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, 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 of a disability, immediately call your dishfic~ AD A coordinator at (563) 5894448. (If you are hearing impaired, call Relay Iowa TTY at 1-800,735-2942). (SEAr,) CLEI OF COroT Dfo._ 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 THE ADAMS COMPANY, an Iowa Corporation, VS. Plaintiff, THE CITY OF DUBUQUE, IOWA, AND THE CITY COUNCIL OF THE CITY OF DUBUQUE, Iowa, Defendants. EQCV 01311 0 ?~O,f-o PETITION COMES NOW the Plaintiff, The Adams Company ("Adams") and for claims and Petition against the Defendants, states: COMMON ALLEGATIONS 1. The Plainfiffis a resident 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 of the City. 2. The Plaintiff is the owner of the following described real property in the City of Dubuque, Dubuque County, Iowa: Lot 1 Adams Company 2nd Addition according to the recorded plat thereof and locally known as 100 East 4th Street, City of Dubuque, Iowa 3. The Plaintiffhas occupied its property and used (and continues to use) a substantial portion thereof for a manufacturing facility for over 100 years. The property is well maintained and was in conformity with ail ordinances of the City of Dubuque, Iowa prior to April 15, 2002. 4. At all relevant times prior to April 15, 2002, the Plaintiffs use of its above described reai property was a lawful and permitted use under the then-existing zoning classification MHI (Modified 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 property described within the Ordinance as a Planned Unit Development District ("pLrD"). 6. The Plaintiff's property described above is located within the Zone B as defined within the Ordinance. If the Ordinance is given effect against this Plaintiff, the use of the property of the Plaintiff will become a nonconforming use, and the Plaintiff will be subjected to material and substantial limitations upon its existing uses of its property and will be required to modify its property, all to the Plaintiff's immediate, substantiai harm and irreparable damage. 7. Plaintiff, under the PUD Ordinance will be prohibited from expanding its 2 existing manufacturing facility and will be limited in reconstruction and remodeling efforts. 8. The adoption of the PUD ordinance by the Defendant Council and the Defendant City of Dubuque was and is illegal and invalid as to Plaintiff for the following reasons: A. The decision of the Council adopting the Ordinance was arbitrary, capricious and unreasonable, because the harm to' the Plaintiff is immediate and severe, while the benefit to the City and the Council is speculative and remote; B. The adoption of the Ordinance imposes upon the Plaintiff a disproportionate share of the cost or burden of the possible development by the City and the Council; C. The adoption of the Ordinance is an improper use of zoning authority as an illegal substitute for condenmation by power of eminent domain: D. The imposition of the reclassification upon this Plaintiff without condemnation denies the Plaintiff substantive due process, contrary to the 14th Amendment to the Constitution of the United States and Sections 6, 9 and 18 of Article I of the Constitution of the State of Iowa; E. The adoption of the Ordinance constitutes an improper condemnation or taking of the Plaintiff's 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 Plaintiff's property, contrary to the principles declared by the Low Supreme Court in the ease ofF. H. Uelner Precision Tools & Dies, Inc. vs. Cit~ q£Dubuque, Iowa~ 190 N.W.2nd 495 (Iowa 1971) 9 The Plaintiff was and is aggrieved by the actions of the Defendants City of Dubuque and City Council, described above. 10 For the reasons set forth above, Plaintiff is entitled to a Writ of Certiorari reviewing the acts of the Defendants and to an order herein setting aside or declaring invalid as to this Plaintiff the wrongful acts of the Defendants in adopting the Ordinance. WHEREFORE, Plaintiffprays that a Writ of Certiorari issue from 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 Plaintiff opportunity for discovery according to the Iowa Rules of Civil Procedure, that this Court permit the Plaintiff oppommity to submit additional evidence as provided by Iowa Rule of Civil Procedure 1.1410, that this Court determine 4 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' action in adoption of the Ordinance as to this Plaintiff, and that Plaintiff has such other relief as may be just and equitable, including the costs of this action. DECLARATORY JUDGMENT 11. As demonstrated by allegations ofparagraphsl - 10 above, a dispute exists between the Plaintiff and Defendants, to wit: A. Plaintiff contends that the Defendants' adoption of the Ordinance was illegal and invalid as to this Plaintiff, for all the reasons stated in Paragraph 8 above; and B. Defendants contend that the Defendants' adoption of the Ordinance is legal and valid as to this Plaintiff. 12. The controversy between the parties regarding the rights, status or legal relations affected by the Ordinance and the dispute between the Plaintiff 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, Pla'mtiffprays that the Court determine the rights, stares or legal relations of the Plaintiff and the Defendants with respect to the Ordinance, by declaring that the Ordinance is invalid as to this Plaintiff. INJUNCTION 13. If the Defendants attempt to enforce the Ordinance against this Pla'mtiff, the Plaintiff will suffer irreparable interference with their property rights and use of its property described above. 14. No adequate remedy exist at Law for such interference with or deprivation or the use of the Plaintiff's property. 15. In order adequately to protect the Plaintiff from the illegal and invalid application of the Ordinance, it is necessary that this Court enjoin the Defendants from any or indirect attempt to impose the Ordinance upon the Plaintiff, or to enforce the Ordinance against the Plaintiff. WHEREFORE, the Plaintiff prays for the entry of a final order enjoining the Defendants from any direct or indirect attempt to impose the Ordinance upon the Plaintiff, or to enforce the Ordinance against the Plaintiff. FUERSTE, CAREW, COYI~E, JUERGEN~ M,~ER, P.C. By /s/ Allen J. Carew 000000728 By /s/ Douglas M. Henry, 000002309 200 Security Building 151 West 8th Street Dubuque, Iowa 52001 Phone: (319) 556-4011 Fax: (319) 556-7134) 6