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Claim Newt Marine & Dbq Termina· ; , ~. IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY GARY NEWT and KAREN NEWT, NEW'F MARINE, INC., DUBUQUE BARGE & FLEETING SERVICE, INC. d/b/a NEWT MARINE and DUBUQUE TERMINALS, INC. Plaintiffs, VS. THE CITY OF DUBUQUE, IOWA, Defendant. CASE ORIGINAL NOTICE TO THE ABOVE-NAMED DEFENDANT(S): You are notified that a petition has bean filed in the office of the clerk of this court naming you as the defendant(s) in this action. A copy of the petition is attached to this notice. The attorney for the plaintiffs is David J. Dutton, whose address is 3151 Brockway Road, P.O. Box 810, Waterloo, Iowa. That attorney's phone number is (319) 23~, ~,~,71; facsimile number (319) 234-8029. You must serve a motion or answer within 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 distdct ADA coordinator at 1-563-589 ~,~?,9. (If you are hearing impaired, call Relay Iowa TTY at 1-800-735-~9,42). ~ Dubuque County Courthouse Dubuque, Iowa 52001 IMPORTANT YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. [Adopted by Acts 1976; amended effective July 1, 1979; July 1, 1987; amended effective Jan. 24, 1998.] I:~Lit~NewtMadne~Pleadings~Odginal Notice.wpd IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY GARY NEVVT and KAREN NEWT, NEWT MARINE, INC., DUBUQUE BARGE & FLEETING SERVICE, INC. d/b/a NEWT MARINE and DUBUQUE TERMINALS, INC. Plaintiffs, VS. THE CITY Of DUBUQUE, IOWA, Defendant. CASE NO. 01 ~) I 1 PETITION AND JURY DEMAND PLAINTIFFS state: 1. Newt Marine, Inc., Dubuque Barge & Fleeting Service, Inc., d/b/a Newt Marine and Dubuque Terminals, Inc. are Iowa Corporations with principal offices in Dubuque, Dubuque County, Iowa. Gary and Karen Newt are husband and wife and owners of property involved in this case. 2. The City of Dubuque, Iowa, is an Iowa municipal Corporation. 3. The Plaintiffs own real estate which is located within the corporate limits of the City of Dubuque. 4. The Plaintiffs own and operate businesses which perform a variety of industrial, manufacturing and commercial jobs in and near the Ice Harbor in the City of Dubuque on land which until recently was zoned HI, Heavy Industrial. 5. The Plaintiffs have invested resources and energies into the leasing, improving and developing of said properties and businesses on the the belief and expectation of continued business operations. 6. The Plaintiffs own and/or iease from the City of Dubuque the following parcels of real estate which are legally described as follows: See attached Exhibits "A - G" which are incorporated by this reference. 7. On April 15, 2002, the City of Dubuque, an Iowa municipal corporation, enacted Ordinance No. 31-02 amending Appendix A (the Zoning Ordinance) which rezoned Plaintiffs' property from HI (Heavy Industrial) to PUD, Planned Unit Development, for future private use, ownership and development. 8. The rezoning was enacted for the specific purpose of eliminating the Plaintiffs businesses and eventual confiscation of Plaintiffs' properties. 9. The Plaintiffs have used their property and developed their business well within the previous zoning classification HI (Heavy Industrial) and in accordance with the Zoning Ordinances of the City of Dubuque. 10. That the rezoning of the Plaintiffs' property and the limitations on the use of the property placed thereon are in violation of the Plaintiffs' rights in each and all of the following respects: a. The zoning restrictions are an illegal and unauthorized taking of private property owned and leased by the Plaintiffs for the use, development and profit of as yet unknown private developers. The reclassification of the property owned and leased by the Plaintiffs constitutes inverse condemnation and a taking of the property rights of the Plaintiffs which entitles the Plaintiffs to compensation according to the Constitution of the State of Iowa and the United States of America. The reclassification of the property zoned and leased by the Plaintiffs violates Plaintiffs' rights of due process and other constitutional safeguards of the property rights of citizens. The reclassification of the properties owned and leased by the Plaintiffs places a burden upon the Plaintiffs which is disportionate and is not justified by the public benefits claimed by the Defendant, the City of Dubuque. e. The decision of the City of Dubuque to reclassify the property owned and leased by the Plaintiffs was arbitrary and capricious. f. The action of the Defendant, City of Dubuque constitutes intentional interference with existing contracts and with prospective business advantages. 11. The Plaintiffs seek both legal and equitable remedies against the Defendant, including but not limited to orders setting aside the Ordinance; injunctive relief; declaratory judgments; injunctions and damages. WRIT OF CERTIORARI 12. The adoption of the Ordinance by the Defendant and the reclassification of the properties owned and leased by the Plaintiffs is illegal for each and all of the reasons set forth above and Plaintiffs are entitled to a Writ of Certiorari to enable the court to review the acts and conduct of the Defendant. WHEREFORE, Plaintiffs pray for a Writ of Certiorari to issue from this Court directing the Defendant to certify a transcript of the proceedings pertaining to the adoption of the Ordinance and reclassification of property, and that the Court upon examining the proceedings and hearing proofs and arguments of counsel, declare the Ordinance and reclassification to be invalid and to set the same aside and to grant to the Plaintiffs such other and further relief as may be just and equitable in the premises. TORTUOUS INTERFERENCE 13. The Plaintiffs replead paragraphs 1 through 12 of this Petition as if each such paragraph and allegations were fully set forth herein. 14. At material times the City of Dubuque was aware of Plaintiffs existing contracts with its several customers. 15. The City of Dubuque was aware of the prospective business relationships which Plaintiffs have with new and former customers. 16. The Defendant, City of Dubuque, intentionally and improperly interfered with the Plaintiffs' contracts and with Plaintiffs' business relationships. 17. The interference by the Defendant, City of Dubuque, made the Plaintiffs' performance of the contracts more burdensome or expensive or caused the parties contracting with the Plaintiffs not to perform or both. 18. The interference by the Defendant, City of Dubuque, caused prospective customers not to enter into or continue their business relationships with the Plaintiffs. 19. The Plaintiffs have suffered damages as a result of the intentional interference by the Defendant, City of Dubuque. WHEREFORE, Plaintiffs pray for judgment against the Defendant, City of Dubuque, in an amount which will fairly compensate the Plaintiffs for the loss and damage which the Plaintiffs have sustained. The Plaintiffs further pray for an award of interest on any judgment and the costs of this action. DECLARATORY JUDGMENT 20. The Plaintiffs replead paragraphs 1 through 19 of this Petition as if each such paragraph and allegations were fully set forth herein. 21. The issues set forth herein between the parties is a proper subject for a declaration of rights and the issuance of a declaratory judgment. WHEREFORE, Plaintiffs pray that the Court issue a declaratory judgment holding that the actions of the Defendant, City of Dubuque, is illegal and invalid and setting aside the Ordinance and reclassification insofar as it affects the Plaintiffs' rights and use of its property. DECLARATORY JUDGMENT 20. The Plaintiffs replead paragraphs 1 through 19 of this Petition as if each such paragraph and allegations were fully set forth herein. 21. The issues set forth herein between the parties is a proper subject for a declaration of rights and the issuance of a declaratory judgment. WHEREFORE, Plaintiffs pray that the Court issue a declaratory judgment holding that the actions of the Defendant, City of Dubuque, are illegal and invalid and setting aside the Ordinance and reclassification insofar as it affects the Plaintiffs' rights and use of their property. INJUNCTION 22. The Plaintiffs replead paragraphs 1 through 21 of this Petition as if each such paragraph and allegations were fully set forth herein. 23. Plaintiffs are without an adequate remedy at Law. 24. The Defendant, City of Dubuque, should be enjoined and restrained from interfering with or limiting the use and enjoyment of the property which they own or lease insofar as their use and enjoyment is within the limitations of the HI (Heavy Industrial) zone. WHEREFORE, Plaintiffs pray for this Court issue a Writ of Injunction restraining and preventing the Defendant, City of Dubuque, from attempting to enfome the Ordinance reclassifying Plaintiffs' property. JURY D£MAND The Plaintiffs hereby request that a jury be impaneled to hear and decide the issues raised by this Petition. Respectfully submitted, DUTTON, BRAUN, STAACK & HELLMAN, P.L,C. A~...f~or Plaintiflr~,.~..' ~/~; ~. ~ut~n/00000~35~ rockway/Road VWatedoo~A 50704 (319) 234-4471 (319) 234-8029 F~ I:~Lit~N ewt Mafine\Pleadings~Petition&Jury Demand.wpd ~m~ ~tHKilXL YLKVICL Pa×:bb3-b~-~3?l ~.~a.y 15 '02 5:~1 P.02 ~.~,. STATE BAR ASSOCIATION FOR THE LEGAL EFFECT O~ THE USE OffJcial Form NO, 143~] H~ FORM. CONSULT YOUR LAWYER SPACE ABOVE THIS UNE FOR RECORDER REAL ESTATE CONTRACT (SHORT FORM) ~ISAGREED between WALTER KATUIN md wife, as joint tenants ~i~ ,(:Buyers') . , .. Seliers agree to sell and ~uYers agree t0 buy real estate in Dubuque , ..... , C0~wa, described as: '~/ ," The Northerly 300 feet o~ B]ock No, 7,. Lo~ 1'o ~--~'~ . ~lock No, 7~ Lot B ~ Harbor Add~tzon to the of / Dubuque, Iow~, ~ccording to the recorded with any easements and appudenant Servient estates, but subject to the following: a, an~ ze ~ing and other ordinances, b. any covenants of record; c. any easemen~ of record for public utilities, roads and highway; ~ nd d. (consider: liens; m~nera~ rights; otMer easements; in[eres~ si o~em.) ........ {th6 "Reel Es~te"), upon the following 1. PRICE. The total ~rchase p~e fdt ~he Real Esle~e is ~w~ H=nd~ed Fifteen ~ ~ousa~ ~d 00 / [00~s ......... 7 .............. ~ .... has been paid, Buyers shall pay t~ ~lance to d[rected bySellers, asfollows: ~wo H~n~zed time of closing which shall be on or before the 25th day of Jan:t~y, 1991. (Thc downpayment provided for here~ sha~ be held in the trust acc ~unt of Hughes Trannel, P.C. pen~g closing.) JtW ENQ{NEgRS & SURVEYORS, 45~,5 pF. NNSYLVANIA AVE, DUBUQUE, iA. (519) · · PLAT..OF SURVEY LOTS 1-1 AND 2-1, BLOCK 15A OF DUBUQUE: HARBOR COMPANY ADDITION BEING A.DIVISION OF.LOT 1, B.L. OCK 16A OF THE DUBUQUE HARBOR COMPANY ADDI'IION TO THE CiTY OF DUBUQUE, IOWA · LO/' ARI~A5 IN BLOCK · . 0~') I~OCK :1.SA LOT BLOCK o 5o 6O JOHN M. 1 TRANMER -. LEGEND ~454 EXHIBIT IIB II EXHIBIT P. 04 WATER ~'I'REET · TERMINAL STREET EXHIBIT Pax:565-588-43?1 MaW 13 '02 15:44 P. 06 : d:O NES ' STREET NOM13,1962 ~u~uqu~,[O~ ~ : :.':''' . ::,:: .: DOD¢ SUB, L~T '1 ST 'SCALE ,~ 1%- 100' I.P. £ IRON PiPE t. EXHIBIT NLWl MHKINL SERVICE Fax:S~8~437~ ~ MaW i3 '02 ~5:44 P. 07 PLAT OF Lots 1 and 2 In 'First ~rmat i NOTE: ~.. :.,~ :,~. .;.; .,,, EY Clty of Dubuque, Ecoa. ~s LOCATED ~N SECT?ON R,$ E. OF THE 5TH P.H, LOT I LOT WATER , URVEYF. D I~OUNDRRy LZNE FOUNO 'rRON R~AR ItOi~U.~EkT W/CAP NO. PLACED ZeOa. x,T,-a~. HO~LNENT N/CAP ~0, 'FOUND CUT ZN DDNO. PR~(G. LOT RECORD ~IEASI~I~ENT SURVE'W' R~QU~TED bY: · L. I:~tl~JaU, E TANK ~*ERN~'KAL COMPANY E'LY LOT STREET LOT '1 1.25 ACRES TOTAL 2.50 ACRES 8761 EXHIBIT T P. U2 EXHIBIT IIG II L SUB. B, AL-BA L _ L. 2 ' LI" L. /32 DODG£ ST ,~ Co Newt Marine -- 5 Jones Street - -Dubuque, IA 52001 Parcel number: 1130305009 Legal - Lot 1 of 1 Block 16A Dubuque Harbor Co Add Gary W. & Karen M. Newt - - 5 Jones Street - - Dubuque, IA 52001 Parcel number: 1130303001 Legal - N 188' ofN225' of N300' Block 7 & S 37' ofN225' of N300 Block 7 Dubuque Harbor Co Add Parcel number: 1130303002 Legal - Lot 1 & S 75' of N300' Block 7 Dubuque Harbor Co Add. Parcel number: 1130303003 Legal - Lot "B" Sub 2 Block 7 Dubuque Harbor Co Add Dubuque Terminals, Inc. ~ - 5 Jones Street - - Dubuque, IA 52001 Parcel number: 1130155002 Legal - Lots 1 & 2 First Street Sub Parcel number: 1130301002 Legal - Lot 8 Block 6 Dubuque Harbor Co Add Parcel number: 1130305006 Legal- Lot 1 -2 Block 16A Dubuque Harbor Co Add Lot 1 Block 16 Dubuque Harbor Co Add Parcel number: 1130302901 Legal - Lot 1 Chemical Sub "Buildfl~g On Leased Land" Parcel number: 1130304901 Legal - River Front Dub Har Cos Add Bldg on Leased Land Parcel number: 1130302902 Legal - Lot 1 Chemical Sub Bldg on Leased Land Parcel number: 1119401901 Legal - Bldg on Leased Land River Front Sub No. 2 of Lots 1,2,4, & 8 Pt Lot 6 of Block 4 - also Lots 1 & 2 Block 8 River Front Sub No.2