John White vs. City of DubuqueTHE CTTY OF s"" .
Masterpiece on the Missi~stppi
BARRY LINDAH~L ~ ~°"`~~ ~~
CITY ATTORNEEY
k,
1'0: Mayor Roy D. Buol and
Members of the City Council
®ATE: May 7, 2009
RE: John White vs. City Council
Following the October 8, 2007 hearing at which the City Council determined that the
residence at 409 Burch Street was a public nuisance, John White filed a legal action
challenging the nuisance determination on two grounds: First, that the City Council
should have continued the hearing to allow him an opportunity to obtain counsel, and
second, that the evidence introduced at the hearing did not show the condition of Burch
Street on the date of the hearing.
The City filed a Motion for Summary Judgment, asking the court to rule on those two
claims. Enclosed is the District Court Order ruling in the City's favor on both claims.
The court found that Mr. White was given sufficient time to retain an attorney. You will
recall that Mr. White was given notice of the August 27, 2007 hearing on July 5, 2007.
His attorney, Joe Bitter, requested a continuance. The City Council granted a
continuance and the hearing was set for October 8t". Mr. White received notice of the
new hearing on September 7, 2007. Mr. White's new attorne~r requested another
continuance on October 4, 2007, four days before the October 8t hearing. The court
concluded that Mr. White was given sufficient time to retain an attorney.
With respect to the claim that the evidence presented did not show the condition of the
residence on the date of the hearing, the court also ruled in favor of the City, finding that
the necessary elements of a public nuisance were established as of the date of the
hearing.
The court has now authorized the City to proceed with condemnation under Iowa Code
section 364.12A.
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
I will have the appraisal of the property updated and when I have the appraisal back I
will bring a resolution to the City Council setting the fair market value of the property as
the first step in the condemnation process.
BAL:tIs
Enclosure
cc: Michael C. Van Milligen, City Manager
Cindy Steinhauser, Assistant City Manager
David Harris, Housing & Community Development Director
F:\USERS\tsteckle\Lindahl\White John-409 Burch\MayorCouncil_DistrictCourtRuling_050509.doc
OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA
SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944
TELEPHONE (563) 583-4113 / FAx (563) 583-1040 / EMAIL balesq@cityofdubuque.org
JOHN WHITE,
vs.
CITY COUNCIL FOR CITY OF DUBUQUE,
Defendant.
ORDER
The Defendant's Motion for Summary Judgment came on for hearing on April 16, 2009. Plaintiff
appeared with Attorney Christopher M. Soppe. Defendant appeared through Attorney Barry A. Lindahl.
On October 8, 2007, the City of Dubuque held a hearing to determine if the residence at 409
Burch Street, Dubuque, Iowa, owned by Plaintiff, was a public nuisance. On October 9, 2007, the city
council of the City of Dubuque rendered a decision that the property was a public nuisance. It was
further ordered that the City Manager "abate the public nuisance in any manner authorized by law,
including condemnation and conveying the property to a private individual for rehabilitation or for
demolition and construction of housing as provided in Iowa Code section 364.12A."
Plaintiff challenges this decision on two grounds. He alleges that the hearing should have been
continued to allow the Plaintiff an opportunity to obtain counsel. He also alleges that the evidence
introduced during the hearing "did not show the present condition of 409 Burch Street but the condition
of 409 Burch Street in years past."
The undersigned will first address the allegation that the hearing should have been continued to
allow Plaintiff the opportunity to obtain an attorney. The hearing that occurred on October 8, 2007, was
initially set for August 27, 2007. Plaintiff was given notice of the August 27, 2007, hearing on July 5,
2007. A letter from Attorney Joseph Bitter dated August 23, 2007, requested a continuance because
Attorney Bitter was no longer able to represent the Plaintiff for health reasons. Mr. Bitter requested a
continuance of approximately two weeks to allow Plaintiff time to retain an attorney. The request to
continue the hearing was granted and the hearing was set for October 8, 2007. Plaintiff got notice of
the October 8, 2007, hearing on September 7, 2007. Attorney Stuart Hoover wrote a letter dated
October 4, 2007, requesting a continuance. Attorney Hoover stated in his letter that Plaintiff "recently
requested" representation by his law firm. The request to continue the hearing was denied. Plaintiff
appeared pro se at the hearing on October 8, 2007. Plaintiff was given an opportunity to participate and
did participate at the hearing. There is no factual dispute as to this issue. Under these circumstances, it
can only be concluded that Plaintiff was given sufficient time to retain an attorney.
As to the allegation that the evidence presented during the October 8, 2007, hearing was only as
to the past condition of the residence rather than the condition of the residence as it existed at the time
of the hearing, the decision of the Dubuque City Council stated in part as follows:
. ."'^c~. n' .r
~.
!` t -: ~~
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY r{~?'~~e ~"`
~.ft; ~"'
- ) CASE NO. CVCV55770 ~ ~'~~~~~'€'~' ~
Plaintiff, ) rr7~~~~1
"A hearing on the Application was held on October 8, 2007. John White appeared
personally at the hearing.
Page 2 of g
White v. City of Dubuque
Case No. CVCV55770
Based upon the evidence presented at the hearing, the City Council finds as follows:
1. The building has stood with an incomplete exterior shell for longer than one year.
2. The building is and has been unoccupied for several years.
3. Rainwater is not properly drained from every roof so as not to cause dampness in
the walls, ceilings or floors of any habitable room, or of any bathroom or water
closet compartment.
4. Porches, patios and balconies located more than thirty inches (30") higher than the
adjacent area are not provided with protective guardrails.
The building and the owner are therefore in violation of the following sections of the City of
Dubuque Code of Ordinances:
Sec. 23-~1. Definitions:
As used in this Article, the following definitions shall apply:
Abandoned Building: Any building or portion thereof which has stood with an
incomplete exterior shell for longer than one year, or any building or portion thereof
which is unoccupied and which meets one or more of the following criteria:
****
(2) Is in violation of,the City of Dubuque Housing Code, Building Code, or Fire Code.
Sec. 26-10. Housing Standards:
~**~
(g) Structure And Materials:
****
(3) Approved Interpretations:
~~~~
d. Drains: All rainwater shall be properly drained from every roof so as not to cause
dampness in the walls, ceilings or floors of any habitable room, or of any bathroom or
water closet compartment.
**~*
j. Guardrails: All porches, patios and balconies located more than thirty inches (30")
higher than the adjacent area shall be provided with protective guardrails. Guardrails,
when replaced, shall comply with Uniform Building Code standards.
The City Council determines that the building is a public nuisance in violation of the foregoing
provisions of the City of Dubuque Code of Ordinances."
All four of the specified findings set out above were established at the hearing as having existed
on October 8, 2007. Photographs taken by the City on October 8, 2007, of the exterior of the house
were admitted into evidence. Plaintiff stated at the hearing that the exterior of the house was "very
close to being completed." Regardless of the accuracy of this statement, as stated above, all of the
findings of the city council are correct and there is no factual dispute as to any of these findings.
Page 3 of 3
White v. City of ®ubuque
Case IVo. CVCV55770
IT IS THEREFORE ORDERED that the Defendant's Motion for Summary Judgment is granted. The
City of Dubuque, Iowa, may proceed as authorized under Iowa Code section 364.12A. Plaintiff shall pay
the court costs.
DONE AND ORDERED: May 1, 2009
AW NCE H. FAUTSCH, JUDGE
Copies to:
Attorney Chris optier M. Soppe
Attorney Barry A. Lindahl
Barry A. Lindahl, Esq.
City Attorney
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001 -6944
(563) 583 -4113 office
(563) 583 -1040 fax
balesq@cityofdubuque.org
cityofdubuque.org
John K. Ross
Institute For Justice
Research Associate
901 N. Glebe Road, Suite 900
Arlington, VA 22203
BAL /tis
cc: Kevin Firnstahl, Acting City Clerk
F:\ USERS \tsteckle \Lindahl \Letters \Ross 409BurchStreet 080111.doc
Dubuque
bitid
at•Ametticacitr
2007
August 1, 2011
Masterpiece on the Mississippi
RE: 409 Burch Street
Dear Mr. Ross:
Your August 1, 2011 letter to Acting City Clerk Kevin Firnstahl has been referred to this
office for a response.
In answer to your questions, the City did not "seize the property." Mr. John White, who
was the owner of the property, continues to own the property as far as I know. Mr.
White appealed the City Council's determination that the property was a public
nuisance. During the pendency of the appeal, Mr. White completed enough of the work
on the house that the City Council determined that it was no longer a public nuisance.
The condemnation proceedings were not pursued.
If you would like any of the documentation in the case after October 2008, please let me
know.
Very �,�sincerely,
��� �-_,
1 7 arry A. Lindahl, Esq.
ity Attorney
08/01/2011 10:45 7036829321 INST FOR JUSTICE
August 1, 2011
Kevin Firnstahl
Acting City Clerk
50 W. 13th St.
Dubuque, IA 52001
Dear Mr. Firnstahl,
Pursuant to the state open records law, Iowa Code
information on the condemnation of 409 Burch St
article). Did the city seize the property? If so, who
being used for?
I agree to pay any reasonable copying and postage
would be greater than this amount, please notify m
the charges for each document.
As provided by the open records law, I will expect
days.
Thank you for your assistance.
Sincerely,
t
John K. Ross
Institute for Justice
Research Associate
901 N. Glebe Road, Suite 900
Arlington, VA 22203
jross @ij.org
ARLINGTON AUSTIN
iJ
• INSTITUTE FOR JUSTICE
CHICAGO MINNEAPOLIS
Secs. 22.1 to 22.14, I am seeking
after October 2008 (see attached news
owns the property now and what is it
fees of not more than $10. If the cost
e. Please provide a receipt indicating
your response within ten (10) business
SEATTLE TEMPE
901 N. Glebe Road, Suite 900 Arlington, VA 22203 (703) 682.9320 (703) 682 -9321 Fax
e -mail: general ®il.org Home oaaee www
PAGE 02/03
08/01/2011 10:45 7036829321 INST FOR JUSTICE
409 Burch Street case starts over
BYLINE: Andy Piper TH staff writer /apiper @wcinet.com
SECTION: A; Pg. 3
LENGTH: 430 words
LOAD -DATE: October 28, 2008
LANGUAGE: ENGLISH
PUBLICATION -TYPE: Newspaper
1 of 4 DOCUMENTS
Telegraph Herald (Dubuque, IA)
October 28, 2008 Tuesday
PAGE 03/03
Page 1 of 1
John White's years -long battle with the city of Dubuque continues. Renovations of White's house at 409 Burch St., which
was gutted by fire in February 2000, has been a topic of conversation at Dubuque City Council meetings since 2004. The
Council declared the property a public nuisance last year and voted, 4-3, in May to begin the eminent domain process. Last
week, the city dismissed its application for condemnation, but only temporarily, according to City Attorney Bany Lindahl.
"John White filed a lawsuit challenging whether we could begin condemnation," Lindahl said. "He says he never received
notice of the City Council's intent to declare the property a public nuisance." Lindahl said the city will continue with eminent
domain once White's lawsuit can be addressed. The city is using a clause in state law that allows a city to take over a property
because its condition is considered a public nuisance. "We now have re- served him with the City Council declaring the -
property a nuisance," Lindahl said. "The only thing we've done as far as the condemnation is set the fair market value of the
property," The city has set the price of the unfinished home at $34,000, which it would pay White if eminent domain takes
place. White said he has invested thousands of dollars into the house and plans to begin working on it again now that the City
has dismissed its case. "This next week, we're going to work on the exterior of the house for a couple of days and then move
inside," White said. "The heating system is going In, and we'll be living in there as quick as we can." White has been slowly
restoring the 112- year -old house for many years, and the pace of the project has exasperated officials, who began providing
the City Council with regular updates on White's progress in 2004. White originally was cited with violations after
complained about construction materials on the property. Scaffolding still stands on the south side of the house and limestone
blocks are stacked in the rear. White said the property owners who filed the complaint no longer live there and that he has
heard nothing but support for the project. "People keep coming up to me and asking why the city is doing this," White said.
"It seems like a personal vendetta to me. It's a historic house, even though it's not in a historic district, but there are homes all
over downtown that didn't have a fire that people aren't doing anything with." Lindahl said if White would at least finish the
exterior of the house, it might be enough to persuade the City Council to let him keep it.
Copyright 2008 Woodward Communications, Inc.
All Rights Reserved
http : / /www.lexisnexis. cone. murex. gmu, edu/ Inacui2api/ delivery/PrintUoc.do ?jobHandle= 182.,, 8/1 /2011
08/01/2011 10 :45 7036829321
DATE:
FROM:
INSTITUTE FOR JUSTICE
901 North Glebe Road
Suite 900
Arlington, VA 22203
Telephone: (703) 682 -9320
Facsimile: (703) 682 -9321
FIRM/COMPANY NAME:
TELECOPY TO THE FOLLOWING NUMBER:
SG3 5 &'t —ogaio
THE FOLLOWING PAGES ARE FOR:
INST FOR JUSTICE
COMMENTS:
NUMBER OF PAGES INCLUDING THIS COVER SHEET: 3
- If you do not receive all the pages please call back immediately -at the
number listed above.
PAGE 01/03