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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 n ~ D'`=~ r°n c ~ c-~ rn T~ f- ~~ , '- c~ -~ ~~ ~ v ~ ~ r ~ m ~ 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