Claim Suit - Stock, & MulgrewsIN THE IOWA DISTRICT COURT ' ~ -
DUBUQUE COUNTY
JAMES and NANCY STOCK, as husband
and wife, and MARY LOU MULGREW,
VS.
Plaintiffs,
THE CITY OF DUBUQUE, IOWA, and the
DUBUQUE ZONING BOARD OF
ADJUSTMENT, of the City of Dubuque,
Iowa,
Defendants.
No. 01311~ CV~--,VOS~X) ~ ~
ORIG1NAL NOTICE
TO THE ABOVE-NAMED DEFENDANT(S):
THE CITY OF DUBUQUE, IOWA
You are hereby notified there is a Petition for Writ of Certiorari on file in the office of the
Clerk of the above court, which Petition was filed July ~5, 2002. A copy of this filing is
attached. The Plaintiffs' attorney is Robert L. Sudmeier ofFuerste, Carew, Coyle, Juergens &
Sudmeier, P.C., whose address is 200 Security Building, 151 West 8th Street, Dubuque, Iowa
52001. The Plaintiffs' attorney's phone number is (563) 556-4011, with a facsimile transmission
number of(563) 556-7134.
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 in the Iowa District
Court for Dubuque County at the County Courthouse in Dul)uque, 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 (563) 589-4448. (If you are
hearing-impaired, call relay Iowa TTY at 1-800-735-2942).
CLERK OF THE ABOVE COURT
Dubuque County Courthouse
Dubuque, Iowa 52001
IMPORTANT: YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO
PROTECT YOUR INTERESTS.
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~DIION ~I¥NI9I~O ~O N~fl&~t~t
e~oI jo oTtel$
IN THE IOWA DISTRICT COURT
DUBUQUE COUNTY
JAMES and NANCY STOCK, as
husband and wife, and MARY LOU
MULGREW,
Plaintiffs,
VS.
THE CITY OF DUBUQUE, IOWA, and
the DUBUQUE ZONING BOARD OF
ADJUSTMENT, of the City of Dubuque,
Iowa,
Defendants.
No. 01311 EQCV
PETITION FOR WRIT OF CERTIORARI AND
DECLARATORY JUDGMENT
COME NOW the Plaintiffs, JAMES and NANCY STOCK, as husband and wife,
and MARY LOU MULGREW, 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
Dubuque Zoning Board of Adjustment, of the City of Dubuque, Iowa ("Zoning Board of
Adjustment"), was established by the City of Dubuque, Iowa, to conduct public heatings
and grant variances f~om the City of Dubuque zoning ordinances.
2. The Plaintiffs are the owners of the following described real property in
Dubuque County, Iowa, respectively:
A. Mary Lou Mulgrew: 2600 Bnmskill Road, Dubuque, Iowa
Bo
James and Nancy Stock: Lots 1, 2, 3, 4 and 5 of Block 3 of Oak Meadows
II in the City of Dubuque
3. Dean "Moe" Dolphin is the owner of real property located at 3160 Cedar
Cross Court, Dubuque, Iowa, within an LI - Light Industrial - zoning district, and on or
about April 1, 2002 filed an application along with U.S. Cellular for a variance from the
zoning ordinances pertaining to said property.
4. The Plaintiffs' properties are each located within two hundred (200) feet of
Mr. Dolphin's property for which the variance was sought, and are directly affected by
the decision of the Zoning Board of Adjustment granting the requested variance and
approving the erection of a 275 foot telecommunications tower at 3160 Cedar Cross
Court, Dubuque, Iowa.
5. On or about May 23, 2002, the City of Dubuque, through its Zoning Board
of Adjustment, after public hearing, granted a variance to U.S. Cellular/Dean "Moe"
Dolphin approving the erection ora 275 foot telecommunications tower at 3160 Cedar
Cross Court, Dubuque, Iowa.
6. The variance was granted despite several petitions signed and submitted by
numerous neighbors in opposition of the variance and despite objections made at the
public hearing held by the Zoning Board of Adjustment for such purpose.
7. On or about June 27, 2002, the Zoning Board of Adjustment filed its
"Notice of Decision" granting a variance to U.S. Cellular/Dean "Moe" Dolphin approving
the erection of a 275 foot telecommunications tower at 3160 Cedar Cross Court,
Dubuque, Iowa.
PETITION FOR WRIT OF CERTIORARI
8. The granting of the variance by the Zoning Board of Adjustment was illegal
and in excess of the authority of the City and the Zoning Board of Adjustment in that:
A. The decision was arbitrary and capricious.
Bo
The decision is in complete contradiction to the requirements for the
granting ora variance as set forth in section 5-3.5(C) of the Dubuque
zoning ordinances in that:
No such exceptional circumstances exist where practical difficulty or
unnecessary hardship is so substantial, serious and compelling to
warrant relaxation of the general restrictions;
b)
The property owned by Dean "Moe" Dolphin located at 3160 Cedar
Cross Court does not suffer from any singular disadvantage through
the application of the zoning ordinances which does not apply to
other properties in the vicinity;
c)
Mr. Dolphin is wholly able to make reasonable use of his property in
accordance with the applicable zoning ordinances for a Light
Industrial zoning district; .
The grant of the variance confers special privileges upon U.S.
Cellular and Mr. Dolphin that are denied by the 'zoning ordinances to
other lands, structures, and buildings in the same district; and
e)
The grant of the variance is contradictory to the public interest, will
adversely affect other property in the vicinity, and will not be in
harmony with the intent and purpose of the zoning ordinances.
9. The Plaintiffs were and are aggrieved by the actions of the City and the
Zoning Board of Adjustment, as 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
illegal the wrongful acts of the Defendants in granting the variance.
WHEREFORE, Plaintiffs pray 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 related to the granting ora variance to U.S.
Cellular/Dean "Moe" Dolphin for the erection of a telecommunications tower located at
3160 Cedar Cross Court, Dubuque, Iowa; that this court permit the plaintiffs oppommity
for discovery according to the Iowa Rules of Civil Procedure; that this court permit the
plaintiffs oppommity 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 illegal
the Defendants' actions in granting the variance to U.S. Cellular/Dean "Moe" Dolphin for
the erection of a 275 foot telecommunications tower located at 3160 Cedar Cross Court;
and that Plaintiffs have such other relief as may be just and equitable, including the cost
of this action.
DECLARATORY JIJDGMENT
11. As demoustmted by the allegations of Paragraphs 1-10, above, a dispute
exists between the Plaintiffs and the Defendants, to wit:
Plaintiffs contend that the Defendants grant of a variance to U.S.
Cellular/Dean "Moe" Dolphin to erect a 275 foot telecommunications tower
at 3160 Cedar Cross Court, Dubuque, Iowa, was illegal and invalid, for all
the reasons stated in Paragraph 9 above; and
Defendants contend that the Defendants grant of the variance was legal and
valid.
12. The controversy between the parties regarding the rights, status or illegal
relations affected by the grant of the variance and the dispute between the Plaintiffs and
the Defendants are proper subjects for determination and declaration of the rights, status
or illegal relations thereunder, according to Iowa Rule of Civil Procedure 1.1102.
WHEREFORE, Plaintiffs pray that the court determine the rights, status or illegal
relations of the Plaintiffs and the Defendants with respect to the grant of the variance, by
declaring that the grant of the variance was illegal and invalid.
FUERSTE, CAREW, COYLE,
JUERGENS & SUDMEIER, P.C.
By~~
151 West 8th Street
Dubuque, Iowa 52001
Phone: (563) 556-40il
Fax: (563) 556-7134
Attorneys for the PLAINTIFFS.
STATE OF IOWA )
) SS:
CITY OF DUBUQUE )
The undersigned, Mary Lou Mulgrew, being first duly sworn on oath, depose and
state that I am one of the named Plaintiffs in the above-entitled action, that I have read the
foregoing Petition for Writ of Certiorari and Declaratory Judgment, know the contents
thereof, and statements contained therein are tree and correct as I verily believe.
Mary LoffdMulgrew ~
On this [ ~/ day of July, 2002, before me, the undersigned, a Notary Public,
personally appeared Mary Lou Mulgrew, to me personally known, who being by me duly
sworn, did say that she is one of the named Plaintiffs in the above-entitled action
executing the within and foregoing instrument; and acknowledged the execution of the
foregoing instrument to be her voluntary act and deed.
Notary Public in and for the State of Iowa
STATE OF IOWA )
) SS'
CITY OF DUBUQUE )
The undersigned, James Stock, being first duly sworn on oath, depose and state
that I am one of the named Plaintiffs in the above-entitled action, that I have read the
foregoing Petition for Writ of Certiorari and Declaratory Jud~-nent, know the contents
thereof, and statements contained therein are tnae-and correct as I verily believe.
[
J~ne~ Stock
On this/~"t/'-- day of July, 2002, before me, the undersigned, a Notary Public,
personally appeared James Stock, to me personally known, who being by me duly sworn,
did say that he is one of the named Plaintiffs in the above-entitled action executing the
within and foregoing instrument; and acknowledged the execution of the foregoing
instrument to be his voluntary act and deed7-...~ ,f~
STATE OF IOWA )
) SS'
CITY OF DUBUQUE )
The undersigned, Nancy Stock, being first duly sworn on oath, depose and state
that I am one of the named Plaintiffs in the above-entitled action, that I have read the
foregoing Petition for Writ of Certiorari and Declaratory Judgment, know the contents
thereof, and statements contained therein are true and correct as I verily believe.
Nan~ck ( ~
On this ~q~ay of July, 2002, before me, the undersigned, a Notary Public,
personally appeared Nancy Stock, to me personally known, who being by me duly swom,
did say that she is one of the named Plaintiffs in the above-entitled action executing the
within and foregoing instrument; and acknowledged the execution of the foregoing
instrument to be her voluntary act and deed.
~-~ ! DANITA L. GALDICK
! COMMISSION NO. 711279
! MY COMMISSION EXPIRES
Notary Public in and for the State of Iowa
1N THE IOWA DISTRICT COURT
DUBUQUE COUNTY
JAMES and NANCY STOCK, as
husband and wife, and MARY LOU
MULGREW,
Plaintiffs,
VS.
THE CITY OF DUBUQUE, IOWA, and
the DUBUQUE ZONING BOARD OF
ADJUSTMENT, of the City of Dubuque,
Iowa,
Defendants.
No. 01311 ~ ~'~(LxlC)53~c(~
ORDER
The Court is presented on this~v$ ~4day of July, 2002 with the Plaintiffs' Petition
for Writ o.f_Qfg-t, iorari and Declaratory Judgment. Having reviewed the Petition and being
advised by abunsel for the Plaintiffs, the Court finds that such Writ should issue.
IT IS ~THEREFORE ORDERED, ADJUDGED AND DECREED that the Clerk of
Court shall issue a Writ of Certiorari commanding the Defendants, The City of Dubuque,
Iowa and the Dubuque Zoning Board of A~justment, of the City of Dubuque, Iowa, to
certify to this Court on or before the ~Caday of ,-/~.b. rx~._~--¢- ,2002, a transcript of
the records and proceedings related to the approval by the l~buque Zoning Board of
Adjustment of a Variance issued to U.S. Cellular/Dean "Moe' Dolphin as referred to in
Plaintiffs' Petition, a copy of such approval and any minutes related thereto, a statement
of the facts of this case, any exhibits or documents Defendants intend to introduce at trial
and a transcript of the proceedings including all documents constituting part of the record.
JU?GE, FIK~T a2JDIC1AL DISTRICT.