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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