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Sunset Ridge Public St requestWILLIAM C. FUERSTE ALLAN J. CAREW MICHAEL J. COYLE STEPHEN J. JUEROENS ROBEKT L, SUDMEIEI~* DOUGLAS M. HENRY MARK J. WILLOINO MICHAEL J. SHUBATT** NORMAN J. WAHGBERG A. THEODORE HUINKER DANITA L. GALDICK Law Offices Of FUERSTE~ CAREW~ COYLE~ JUERGENS & SUDMEIER~ P.C. 200 SECURITY BUILDING 151 WEST gTH STREET DUBUQUE, IOWA 52001-6832 September 23, 2002 TELEPHONE: (563) 5564011 TELECOPIER: (563) 556-7134 mailf~,fccis.com WRITER'S DIRECT E-MAIL ADDRESS dhem~-(&,fccis.com Ms. Jeanne F. Schneider Clerk, City of Dubuque City Hall 50 West 13th Street Dubuque, IA 52001 Re: Sunset Ridge Repaving Request _cD. C> Dear Ms. Schneider: I enclose correspondence to the City Council on behalf of residents of Sunset Ridge, requesting the repaving of Sunset Ridge as a public street. Attached as page 5 of my letter are the signatures of those residents of Sunset Ridge on whose behalf I make this request and who join in the request. Please put this matter on the agenda for the October 7 Council meeting, and distribute my request to the Council Members. I also enclose the Resolution which we request the Council to adopt, which was initially drafted by me and finalized by Mr. Lindahl in the course of our work with City staff in this matter. With kindest regards, we remain, Very truly yours, FUERSTE, CAREW, COYLE, JUERGENS & SUDMEIER, P.C. BY: DOUGLAS M. HENRY DMH/dmk copy: Barry Lindahl FUERSTE, CAREW, COYLE, WILLIAM C. FUERSTE ALLAN J. CAREW MICHAEL J. COYLE Law Offices Of FUERSTE, CAREW, COYLE, JUERGENS & S[IDMEIER, P.C. 200 SECURITY BUILDING 151 WEST 8TH STREET DUBUQUE, Iow^ 52001-6832 September 4, 2002 TELEPHONE: (563)556-4011 TELECOPIER: (563)556-7134 m~l(~fc~s.¢om E-IVL~. ADr)m~ss dhcunw~fccis.com City Council City of Dubuque Re: Sunset Ridge repaving request Honorable Members of the City Council: On behalf of residents of Sunset Ridge we write to request that the City of Dubuque undertake repaving of Sunset Ridge as a public street, according to its usual assessment and contracting procedures. Our clients have conferred with City staff about preserving the essential physical qualities of the street, and believe that they are in accord about necessary waivers of width and sidewalk standards, as described in the Memorandum Mr. Van Milligan sent to you on August 16, 2001. The signatures of those residents of Sunset Ridge who join in this request are attached. Implicit in our request for repaving by the City is the characterization of Sunset Ridge as an existing public street, and the matter immediately before you is a proposed resolution by which the Council will acknowledge that the street is accepted as a public street nunc pro tunc, from the filing of the plat of the subdivision in February, 1926. In anticipation of your action on the proposed resolution, we are also writing on behalf of our clients to summarize our conclusions, the process by which we reached our conclusions in this matter, and our perception of the question which is presented for your resolution. In the past, Mr. Lindahl and I exchanged correspondence regarding the question whether Sunset Ridge is a public or a private street. I have concluded that it is public; Mr. Lindahl said ... [T]here does not appear to have been any expression of a clear intention on the part of the City to accept Sunset Ridge as a public street. However, the information is inconclusive and I am also not prepared to say that Sunset Ridge is a private street." FUERSTE~ CAREW~ COYLE~ JUERGENS & SUDMEIER~ P.C. City Council Page 2 September 4, 2002 I think it is useful to review at some length the basis for our conclusion that the street is public. We started from the statute in effect at the time of platting of Sunset Ridge in 1926. Under the Code of Iowa then in effect, the acknowledgment and recording of a plat conforming to the statutory requirements, as this one did, was "equivalent to a deed ia fee simple of such portion of the premises platted as is set apart for streets or other public use...." The platting statute then in effect was a revision of the Code enacted by 1924 Acts, Chapter 78. Streets were to "be extensions of the existing system of streets...." Section 1, Chapter 78, 1924 Acts. Mr. Lindahl raised the question whether the City accepted the tender, or offer, statutorily implicit in the filing of the plat of Sunset Ridge. Acceptance may be express or may be found to have occurred based upon conduct. Considering the available evidence of what was said and done and the evidence of what was not said or done, within the legal context then existing, we concluded that the City has accepted the street. Under the statute, a proposed plat was to be submitted to the City Council for approval ofits conformity to platting requirements. The platting of Sunset Ridge conformed to these requirements. The plat was approved by the City Council of the City of Dubuque, and the approval is shown on the plat as recorded. Though acceptance of the street is not expressly stated by the Council in its approval, it can be inferred that the Council knew of the platting law then in effect, and if the Council had intended to avoid the effect of that statute, one would expect a definitive statement to achieve an exception to the statutory norm. In this case, there is indirect evidence that the City intended to accept the street. At the time of development of the subdivision, the City and the developer made an Agreement, dated October 26, 1925, filed October 28, 1925, Book 122 M, p. 520, records of the Dubuque County Recorder, regarding the installation and cost of water mains in the subdivision. The parties to that agreement contemplated "a street.., which will be an extension o f W artburg Street, we sterly from Lull Street." [N otc the paralle 1 to the statutory contemplation of streets in newly platted subdivisions as extensions of existing streets.] If the parties expected the street to be a private street, this agreement would have been a logical place to say so. Further, as provided in this Agreement, water mains were laid by the City within the street. No easements were reserved or established. As Mr. Lindahl has noted, the I~UERSTE~ CAREW~ COYLE~ JUERGENS & SUDMEIER~ P.C. City Council Page 3 September 4, 2002 City Water Department has treated the water main as a public utility. Further, the City plowed snow for a number of years. True, Mr. Vogt has the belief that such plowing was done with the reservation that Sunset Ridge is a private street, but no historical, textual basis for that belief has been found. Similarly, until this public vs. private question arose, the City maintained the street lights along the street. As far as we can tell, the electrical service for the street lights was not charged to any resident, leading us to suspect that electrical service charges have historically been included in the general charges paid by the City. The U.S. Postal Service delivers mail to the houses along the street, which it would not do if this were private property. The street is a separately defined, bounded parcel within the subdivision. The lots do not extend into the roadway. No easements were reserved or granted for the benefit of individual properties. No homeowners' association exists. Besides the statute, there is no other provision for ownership of the street by any successor to the developer. If not the City, then who? This question is significant in two ways: first, the absence of an alternative owner suggests, consistent with the statutory plan, that the City became the owner; second, it sharply defines the problem faced by the homeowners along Sunset Ridge. If not under the protection of the City, this street is an orphan, untended, and without the means to care for itself. There is no existing, efficient means to accomplish the repaying which everyone, homeowners and City staff, agree is past due. These people need your help. It is true that there is no direct legal record of acceptance or intent to accept on the part of the City to which Mr. Lindahl may point in advising the City, and therefore we regard his equivocation as appropriate caution in his role as advisor to the Council. Under these circumstances the interpretation of the evidence is best left to you. A finding of fact needs to be made; an official conclusion needs to be reached and made a part of the public record, and we are asking you to make that £mding. We believe a sensible interpretation of these facts is that the City intended to and long since did accept Sunset Ridge as a public street. At the time of our initial appearance before the Council, some of the Council members expressed concern about the precedential consequences of its decision. Some of the Council members wondered whether other private streets would expect to become public. A list of some 85 "private streets" was furnished by City staff. Although those concerns reflect a misperception of our request, (we are not asking the City to accept the street, we are asking the City to recognize that Sunset Ridge is already a public street) we have worked/ndependently and with City staff to respond to that concern. We have found and it is our understanding that City staff agrees that all of those other "private streets" are so different in legal history, description or ownership FUERSTE, CAREW~ COYLE~ JUERGENS &: SUDMEIER~ P.C. City Council Page 4 September 4, 2002 that there really will be no basis upon which the treatment of Sunset Ridge can be regarded as a controlling precedent as to any other of those steets. Thank you for your consideration of this request, which becomes ever more important to our clients. With kindest regards, we remain, DMH/dmk Very truly yours, FUERSTE, CAREW, COYLE, JUERGENS & SUDMEIER, P.C. BY: DOUGLAS M. HENRY City Council September 4, 2002 Page 5 The following residensts support the City of Dubuque recongnizing Sunset Ridge as an existing city street: Preparer: Barry A. Lindahl, Esq. Corporation Counsel Address: Suite 330, Harbor View Place 300 Main Street Dubuque, IA 52001-6944 Telephone: (563) 583-4113 RESOLUTION NO. 556-02 A RESOLUTION ACKNOWLEDGING THE ACCEPTANCE OF SUNSET RIDGE AS A PUBLIC STREET OF THE CITY OF DUBUQUE NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: WHEREAS, on February 27, 1926, the plat of Sun Set Ridge, a Subdivision in the City of Dubuque, Iowa, was filed for record with the Recorder of Dubuque County; and WHEREAS, said plat was duly approved by Resolution of the City Council of the City of Dubuque, and such approval was duly endorsed thereon by the Mayor; and WHEREAS, a roadway is shown upon the plat, consisting of a parcel designated Sun Set Drive and including a cul-de-sac at the southerly end thereof, and 15 feet of additional right-of-way on all sides outside the platted boundaries of Sun Set Drive and a circular area in the center of the cul-de-sac, which roadway is now known as Sunset Ridge; and WHEREAS, no public record has been found of the acceptance by the City of DUbuque of said roadway as a public street; and WHEREAS, in order to resolve questions of ownemhip and responsibility with respect to such roadway and to avoid the necessity of litigation, a declaration must be made with respect to acceptance of said roadway as a public street; NOW, 'THEREFORE, BE IT RESOLVED, BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA, AS FOLLOWS: 1. That the City of Dubuque has accepted the roadway shown upon the recorded plat of Sun Set Ridge, a Subdivision in the City of Dubuque, Iowa, a copy of which is attached hereto, consisting of the parcel designated Sun Set Drive and including a cul-de-sac on the southerly end thereof, and 15 feet of additional right-of-way on all sides outside the platted boundaries of Sun Set Drive and a circular area in the center of the cul-de-sac, which roadway is now known as Sunset Ridge. 2. That such acceptance is effective, nunc pro tunc, from the filing of the plat on February 26, 1926. 3. That the Clerk shall file a copy of this Resolution with the Dubuque County Recorder. Passed, approved and adopted this 7th day of October ,2002. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider, City Clerk F:~USERS~ III ..%.'. I III BARRY A. LINDAHL,I~ SQ. CORPORATION COUNSEL 300 Main Street, Suite 330 Harbor View Place Dubuque IA 52003 tele 563 5834113 fax 563 583-1040 ba/e~q~d~ofdubr~que, org fax 10/04/2002 11:47~.-~ To: Fa.x#: Page8: Michael Van Milllgen, City Manager Mike Koch, Public Works Director 5894149/5894205 Sunset Ridge 5 Message: Please see attached. s6: o. S57's4 :. Law Offices O~ FUERSTE, CAREW, COYLE, JUERGENS & SUDMEIER, P.C. DU~UQ'J~, IOWA 51001-6832 October 4, 2002 ($1~) WRfI'P~'S DlPJ~cr E-MA~ ADD.SS ~. Barry A. Lindahl, AtWrncy at Law Suite 330, Harbor View Place 300 Main Su'eet Dubuque, LA. 52001- 6944 Re: Sunset Ridge by fax to: 583 - 1040 Dear Barry: This will supplement our request that the Council recognize Sunset Ridge as a public street. Along with this letter, I m-n faxing a copy ofthejoinder by Steve Conlon in the request I am also faxing copies of correspondence received from Becky Conlon, Andy Kalb, Suzanne Hem'y, and Genevieve Nemmers, to the effect that although they have not joined in the request to the Council, they do not intend to take any action to challenge such reeognitlon by the Council. We believe this leaves 565 Sunset Ridge, Dave and/or Susan Bisenius, as the only property on Sunset Ridge for which owners have not given a written statement of their position. It is my unde~tanding that t~am the beginning of these discussions, Mr. Bisenius has said that he or they expect soon to be selling this property and therefore do not wish to take any position on the question. Although this seema to me to be a matter which needs resolution to facilitate sale, he has continued to be unresponsive to calls. It is my thought that these statements of intention by those who have not joined in the request should provide further reassurance to the Council. With kindest regards, we remain, Very truly yours, FUERSTE, CAREW, COYLE, JUERGENS & SUDMEIER BY: /s/ Douglas M. Henry City Council Page .~eptember 4, 2002 The following residents support the City of Dubuqua recognizing Sunset Ridge as an existing city street: Address: /s/ Steve Conlon 65 Sunset Ridge Os'r, 235221':~7A¥ ~AR~Y a ~:NDASL F. Sgd .~:~,o 857'LS~S /-/51/e5 October 2. 2002 City Council City of Dubuque Honorable Members of the City Council: We've declined to sign the petition for recognition of Smaset Ridge as a public city street; however, if the City grants the petition and accepts Sxmset Ridge as a public street while allowing the physical variances that the resklents requested we will not take any legal action to challenge it. Thank you. Becky Conlon Andy Kalb 695 Sunset Ridge Dubuque. IA 52003 Suzanne Henry 690 Sunset Ridge Dubuque, IA 52003 October 3, 2002 Ci~ Council City of Dubuque Honorable Members of the City Council: I have declined to sign the petition for recognkion of Sunset Ridge as a public city strr~ however, if the City grant the petition and accepts Sunset Ridge as a public street while allowing the physical variances that thc residents have requested, we will not take any legal action to protest. Thank you for your time. Genevieve F. Nemmers 500 Sunset Ridge Dubuque, lA 52003 TOTg_ P. 05