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.
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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