LK Development & Storage_3040 Elm StreetKANE, NORBY & REDDICK, P.C.
ATTORNEYS
Brian J. Kane 2100 ASBURY ROAD, SUITE 2
Les V. Reddick* DUBUQUE, IA 52001-3091
Brad J. Heying
Todd L. Stevenson*
Kevin T. Deeny**
Bradley B. Kane
Joseph P. Kane
All admitted in Iowa
*Also admitted in Illinois
**Also admitted in Wisconsin
VIA U.S. CERTIFIED MAIL
RETURN RECEIPT REQUESTED
Ms. Jeanne Schneider
City Clerk, City of Dubuque, Iowa
50 West 13t'' Street
Dubuque, IA 52001
December 2, 2009
Of Counsel:
Gary K. Norby
Phone: (563) 582-7980
Facsimile: (563) 582-5312
E-mail:b kane@kanenoxbyla~v. com
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RE: REQUEST FOR REMOVAL FROM HISTORIC CONSERVATION DISTRICT
Dear Ms. Schneider:
We are writing on behalf of our client, LK Development & Storage, LLC, to formally request that
the building located at 3040 Elm Street inDubuque, Iowabe removed fromthe city's historic conservation
district. This removal is requested pursuant to section 14-1A-4(G)(1) of the Dubuque Code of
Ordinances.
FACTS
LK Development and Storage, LLC ("LK")has owned the property located at 3040 Elm Street
in Dubuque, Iowa for several years. The building is used for commercial leasing activities by LK, namely
as a storage facility. It is also used as a work space by LK's tenant in a limited capacity, namely trailer
maintenance. The building is not used for residential purposes. The size and condition of the building lends
itself well to LK's purposes; i.e., commercial storage for local tenants.
The violations of Title XN of the City of Dubuque Code of Ordinances alleged by the City of
Dubuque are primarily due to the alleged condition and maintenance of the building, i.e., roofing, sealed
windows, etc. These alleged violations are solely due to the building's inclusion in the City's "Conservation
District".
KANE, NORBY & REDDICK, P.C.
December 2, 2009
Page 2
ARGUMENT
We have reviewed prior correspondence from you to our client, as well as prior correspondence
from Attorney David Clemens to you and/or other City representatives. As we understand it, our client
legitimately acquired this real estate onthe openmarket and operates a legal commercial leasing activity
in its building. The City, apparently of its own volition and notwithstanding the obj ection of our client, has
included our client's property in an "Historic District." By virtue of that designation, literally forced upon
our client and over their objection, the City now subjects our client to continued "inspections" and
"demands" for repairs. We have the following additional comments:
1. The City's previously expressed public intentions with regard to this real estate and adj oining
real estate to be used for City purposes causes concern with respect to the motivation for the continued
inspections and demands for repairs.
2. Equal protection under the law, by virtue of the United States and Iowa Constitutions, prohibits
any unlawful administration by officers of apolitical subdivision which result in unequal application ofthe
law to those who are entitled to be treated alike under it, particularly if there is an element of intentional or
purposeful discrimination. See, City of Wapello v. Chaplin, 507 N.W.2d 187, 189-190 (Iowa App.
1993). Are all similarly situated persons so inspected and sent repair notices?
3 . Further, an ordinance with affects the use of the property so as to diminish its value can result
in an inverse condemnation. See, K & W Electric, Inc. v. State of Iowa, 712 N.W.2d 107, 117-119
(Iowa 2006).
Our client would prefer not to be in the historic district, and is now pursuing the process pursuant
to Dubuque Ordinances to seek amendment and/or recission of such designation pursuant to Section 25-
6(I) ofthe Dubuque Ordinances. Further, please remember that the "viability" of actions you "force" on
our client still must pass a "viability" test.
In the end, our client wants to continue to be a responsible business citizen in the community and
to continue to operate its legal and legitimate business activity without undue interference from anyone.
Repairing the building to eliminate the alleged violations would result in significant economic
hardship to LK. At a minimum, the sum of $22,000.00 would have to be expended to repair the roof, and
other significant, but as yet undetermined sums, would have to be expended to make the other necessary
repairs. LK believes that such repairs are superfluous, as none are needed to permit the continued
operation of its business in the building. The standards to which the building are being held are inconsistent
with those that were in existence upon the acquisition of the building by LK, and will greatly diminish LK's
ability to continue to operate.
KANE, NORBY & REDDICK, P.C.
December 2, 2009
Page 3
In previous correspondence with the City of Dubuque's Building Services Manager, we indicated
that the continued imposition of the historic building code provisions upon our client will be detrimental to
our client's business interest in the property, and will fall beyond the scope of what is permitted under the
City Code of Dubuque. This remains true today. The building will be economically nonviable for our client
if all improvements and requested renovations are made in reparation of the alleged City Code Violations.
As such, we again urge upon you that our client is eligible for a certificate of economic nonviability pursuant
to City Code section 25-8(c)(4). Ifthis is not possible, then our client's only recourse becomes a request
for removal from the historic district.
REQUEST
Please submit this request to the Dubuque City Council for consideration at its next scheduled
meeting. If LK is not deemed economically nonviable, then it formally requests removal from the historic
conservation district. LK requests that the undersigned be informed of any scheduled hearing dates
regarding this matter. If you have any further questions or concerns regarding this matter, please do not
hesitate to contact us. Thank you.
Best regards,
KA
By:
BJK/jpk
cc: Ms. Crenna Brumwell