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Claim Weidemann, Terrance & LinIN THE IOWA DISTRICT COURT FOR DUBUQUE COUNTY TERRANCE J. WEIDEMANN and LINDA M. WEIDEMANN, VS. Plaintiffs, THE CITY OF DUBUQUE, IOWA, AND THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ORIGINAL NOTICE oi311 EQcv O 950/5 TO THE ABOVE-NAMED DEFENDANTS: You are notified that a petition has been filed in the office of the clerk of this court, naming you as the defendants in this action. A copy of the petition (and any documents filed with it) is attached to this notice. The attorney for the plaintiffs is Stephen W. Scott, whose address is 100 West 12th Street, P. O. Box 703, Dubuque, IA 52004-0703. That attorney's phone number is (563)- 588-0547; facsimile number (563)-588-1981. 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 district ADA coordinator at 589-4448. (If you are heating impaired, call Relay Iowa TrY at 1-800-735-2942). IMPORTANT: Dubuque County Courthouse ' Dubuque, IA 52001 YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERESTS. IN THE IOWA DISTRICT COURT FOR DUBUQUE COI. fNTY TERRANCE J. WEIDEMANN and LINDA M. WEIDEMANN, VS. Plaintiffs, THE CITY OF DUBUQUE, IOWA, AND THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, Defendants. ) ) ) PETITION ) ) ) ) ) COME NOW, the Plaintiffs, Terrance J. Weidemann and Linda M. Weidemann, and for claims and 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, and the Defendant City Council of the City of Dubuque, Iowa ("Council"), is the governing body of the City. 2. The Plaintiffs are the owners of the following described real property in the City of Dubuque, Dubuque County, Iowa: The Southeasterly 6 feet of Lot 6, Lot 7, Lot 8, Lot 9, Lot 10, Lot 11, Lot 2 of Lot 12, Lot 2 of Lot 13, Lot 2 of Lot 14, and Lot 2 of Lot t5, all in Block 29 of "Dubuque Harbor Improvement Co.'s Addition" to the City of Dubuque, Iowa, according to the recorded plat thereof, AND Lot A of Lot ! 1, and Lot 2 of Lot 11, both in Industrial Subdivision No. 2 in the City of Dubuque, Iowa, according to the recorded plats thereof, from and including the platting of said Industrial Subdivision No. 2, subject to easements of record. locally known as: 155 E. 5th Stret, Dubuque, IA 52001. Page 1 of 4 3. The Plaintiffs have occupied their property and used (and continue to use) a substantial portion thereof for a manufacturing facility. The property is well maintained and was in conformity with all ordinances of the City of Dubuque, Iowa, prior to April 15, 2002. 4. At ail relevant times prior to April t 5, 2002, the Plaintiffs' use of their above described real property was a lawful and permitted use under the then-existing zoning classification MI-II (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 Plarmed Unit Development District ("PUD"). 6. The Plaintiffs' property described above is located within the Zone A as defined within the Ordinance. If the Ordinance is given effect against these Plaintiffs, the use of the property of the Plaintiffs will become a nonconforming use, and the Plaintiffs 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, substantial harm and irreparable damage. 7. PlaintLffs, under the PUD Ordinance will be prohibited from expanding their e~isting manufacturing facility and will be limited in reconstruction and remodeling efforts. PETITION FOR WRIT OF CERTIORARI 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 Plaintiffs for the following reasons: A. The decision of the Council adopting the Ordinance was arbitrary, capricious and unreasonable, because the harm to the Plaintiffs 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 Plaintiffs 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 condemnation by power of eminent domain; D. The imposition of the reclassification upon these Plaintiffs without condemnation denies the Plaintiffs 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 Plaintiffs' property solely for aesthetic considerations; Page 2 of 4 F. The adoption of the Ordinance constitutes an improper use of the zoning power not to preserve but to burden or destroy existing lawfifl uses of Zone A, including Plaintiffs' property, contrary to the principles declared by the Iowa Supreme Court in the case of F.H. Uelner Precision Tools & Dies. Inc. vs. Citxr of Dubuque, Iowa, 190 N.W.2d 495 (Iowa 1971) 9. The Plaintiffs were and are aggrieved by the actions of the Defendants City of Dubuque and the City Council, described above. t 0. 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 fi: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' action 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. · JUDGMENT AND DECREE 11. As demonstrated by allegations of paragraphs 1 - 10 above, a dispute exists between the Plaintiffs and 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 Paragraph 8 above; and B. Defendants contend that the Defendants' adoption of the Ordinance is 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, status or legal relations thereunder, according to Iowa Rule of Civil Procedure 1.1102. WHEREFORE, Plaintiffs pray that the Court determine the rights, status or legal relations of the Plaintiffs and the Defendants with respect to the Ordinance, by declaring that the Ordinance is invalid as to these Plaintiffs. Page 3 of 4 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 its property described above. 14. No adequate remedy exits at Law for such interference with or deprivation or the use of the Plaintiffs' property. 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 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 of a final 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. TERRANCE J. WEIDEMANN and LINDA M. WEIDEMANN, Plaintiffs, By: KINTZINGER LAW FIRM, P.L.C. By: /s/ Stephen W. Scott Attorneys for Plaintiffs 100 West 12th Street P. O. Box 703 Dubuque, IA 52004-0703 (563) 588-0547 Fax (563) 588-1981 Page 4 of 4 David F. Setter Ste~ hen W. Scott Darm S. Harmon? Dean J. Konrardy * Patficia M. Reisen-Otlzvi Brian W. Peters Cow R. Thein Of Counsel Arnold J. Van Etten* Dougdas C. Pearce? *Also licensed in Illinois ?Also licensed in Wisconsin KINTZINGER LAW FIRM, P.L.C. An Iowa Professional Limited Company Established in 1897 ATTORNEYS AT LAW 100 W. 12th Slxeet P.O. Box 703 Dubuque, Iowa 52004-0703 Telephone 563-588-0547 Facsimile 563-588-1981 E-mall office~kintzlaw.com Charles A. Kintzinger (1925-1999) May 15, 2002 Jeanne F. Schneider City Clerk City Hall 13th and Central Dubuque, IA 52001 Dear Clerk: Enclosed please find duplicate Original Notices with Petitions attached in the matter of Weidemann vs. The City. In lieu of having the Sheriff serve you, I would appreciate it if you would sign the Acceptance of Service on the back of the separate sheet Original Notice m~d return it to me so that I might file it with the Clerk of District Court. This is essentially the same type of Acceptance of Service that was accepted on the City's behalf in the case of Dodds, Molo Oil, Mulgrew, et al vs. The City. Thanks for your attention to the matter. Yours truly, KINTZINGER LAW FIRM, P.L.C. SWS/sag Enc.