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.
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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.
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) PETITION
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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.
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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
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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.