LK Development and Storage, LLCTHE CITY OF
DUB E
Masterpiece on the Mississippi
TO: The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
Dubuque
AlMedcaCRY
2007
SUBJECT: City Council Referral - LK Development & Storage, 3040 Elm Street
DATE: January 26, 2010
On December 7, 2009, the City Council referred the enclosed request from attorney
Brian Kane on behalf of LK Development & Storage, LLC relative to property at 3040
Elm Street to the City Manager. The request asked for 1) a certificate of economic
nonviability pursuant to City Code 25 -8(c) (4), or in the alternative, 2) removal from the
historic district.
Planning Services Manager Laura Carstens recommends referral of this request to the
Historic Preservation Commission.
concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM:jh
Attachment
cc: Barry Lindahl, City Attorney
Cindy Steinhauser, Assistant City Manager
Laura Carstens, Planning Services Manager
THE CITY OF
DUB E
Masterpiece on the Mississippi
TO: Michael Van Milligen, City Manager
FROM: Laura Carstens, Planning Services Manager
Dubuque
A1- AmrtaNy
2007
SUBJECT: City Council Referral — LK Development & Storage, 3040 Elm Street
DATE: January 7, 2010
INTRODUCTION
On December 7, 2009 the City Council referred the enclosed request from attorney
Brian Kane on behalf of LK Development & Storage, LLC relative to property at 3040
Elm Street to the City Manager. The request asked for: 1) a certificate of economic
nonviability pursuant to City Code 25 -8(c) (4), or in the alternative, 2) removal from the
historic district.
This memorandum provides the information you requested on the historical background,
process options, historic preservation funding, and related property improvements for
the request by LK Development & Storage, LLC for 3040 Elm Street.
Two points of clarification are needed. First, Mr. Kane's letter discusses the building's
location in a "historic conservation district" (there is no such designation) and in a
"historic district" (the property is not in a historic district). The property is in the Brewery
Conservation District. Secondly, City Code 25 -8(c) (4) referenced by Mr. Kane has been
replaced through adoption of the Unified Development Code. It is now found in UDC
Article 10, which addresses both historic and conservation districts.
BACKGROUND
The City has 5 historic districts and 9 conservation districts. The districts are areas
designated by the City Council containing properties with historical or architectural
value. Each district has defined geographic boundaries. The ordinances related to
Historic Districts and Conservation Districts are quite different. Below is a discussion of
the two types of local districts.
In the historic districts, the Historic Preservation Commission (HPC) reviews
any exterior changes to property that require a building permit and are visible from the
public right -of -way. These types of exterior changes to property in conservation districts
are not reviewed by the HPC; only demolition requests are reviewed by the HPC in
conservation districts.
City Council Referral — LK Development & Storage, LLC Page 2
In both historic districts and conservation districts, the HPC determines if a demolition
permit should be granted according to economic guidelines and review criteria specified
by City Code.
In both historic districts and conservation districts, Demolition by Neglect is prohibited.
On a citywide basis, the Building Services Department enforces the Demolition by
Neglect provisions. A building cited for demolition by neglect likely will also be in
violation of the building code's dangerous building provisions.
The City has a historic preservation revolving loan program for correction of Demolition
by Neglect violations. The loan is for up to $25,000 for 10 years at 3% interest. The
HPC reviews and approves all loans, subject to underwriting criteria. This loan program
also is available in both historic and conservation districts for any exterior work. It is not
available citywide.
On November 21, 2005, the City Council established a conservation district for the
subject property at the request of a private citizen. The request was made due to the
property's significance and an imminent threat of demolition. The district includes the
properties at 3040 Elm Street and at 3000 Jackson Street. Both properties are part of
the historic Dubuque Brewing and Malting Company complex at 30 and Jackson
Streets. This complex is eligible for listing in the National Register of Historic Places due
to its historical and architectural significance.
In addition, the property at 3040 Elm Street is in an Urban Renewal District. Tax
Increment Financing (TIF) is available to assist with rehabilitation of the property.
Enforcement Summary
Since creation of the Brewery Conservation District, City staff and the HPC have
communicated repeatedly with the property owners regarding financial assistance
programs and City Code violations, as well as the process for review of demolition
permits. The HPC listed both 3040 Elm Street and 3000 Jackson Street on the Historic
Preservation Enforcement Report on May 1, 2007 for Demolition by Neglect.
Auto & Truck Parts Inc., owner of 3000 Jackson Street, was notified on May 8, 2008 of
Demolition by Neglect violations, and ordered to correct the roof deterioration and
condition of the exterior brick by the Building Services Department. A citation was
issued by the Building Services Department on November 2, 2009, and a court date of
December 23, 2009 was set. Auto & Truck Parts Inc. applied on November 18, 2009 for
a Certificate of Appropriateness and a historic preservation loan to replace the roof on
the west side of the building.
LK Development & Storage, LLC, owner of 3040 Elm Street, was notified on May 8,
2008 of Demolition by Neglect violations, and ordered to correct the condition of the roof
and windows by the Building Services Department. A citation was issued by the
Building Services Department on November 2, 2009 for these and other violations, and
a court date of December 23, 2009 was set. The court proceeding was continued
City Council Referral — LK Development & Storage, LLC Page 3
pending the outcome of this process. LK Development & Storage, LLC has not
corrected these violations or applied for a historic preservation loan.
DISCUSSION
Mr. Kane's request for a finding or certificate of economic nonviability cannot be
granted. The property at 3040 Elm Street is not eligible for a certificate and /or finding of
economic nonviablity at this time. A finding or certificate of economic nonviability can
be issued for properties located within a historic district when work is required to be
done in compliance with the City Code. This does not apply to properties located within
a conservation district.
The ONLY time an economic viability evaluation is done for a property in a conservation
district is when an application for demolition is filed. As LK Development & Storage has
not filed an application for demolition it is not appropriate at this time to evaluate the
economic nonviability of the property of 3040 Elm Street.
In the alternative LK Development & Storage is asking that the 3040 Elm Street be
removed from the historic district. Technically 3040 Elm Street is in a conservation
district, not a historic district. Assuming LK Development & Storage wishes to be
removed from the Brewery Conservation District the process is found in UDC Article 10.
The process to request alteration of a conservation district begins with a written request
to the City Clerk. The City Clerk puts the request on the next regular City Council
agenda and the City Council has the following options:
1) Approve the request,
2) Deny the request,
3) Set the request for consideration at a subsequent meeting,
4) Set the request for a public hearing, or
5) Refer the request to the HPC for a recommendation before voting on the
request.
Per the UDC, if the City Council sets a public hearing, a notice of the date, time and
location of the hearing shall be published in accordance with Iowa code section 362.3.
The City Council may also direct the City Clerk to mail a notice of the date, time and
location of the meeting at which the City Council will consider the request to the
property owners of record in the district.
If a referral is made to the HPC, the City Council can direct the secretary of the
Commission to mail a notice of the date, time and location of the meeting at which the
HPC will consider the request to the property owners of record in the district.
If the City Council refers the matter to the HPC, then the Commission, at its next regular
meeting, shall review the request, and make a recommendation to the City Council to
City Council Referral — LK Development & Storage, LLC Page 4
approve or deny the request, or to table the request for additional information for a
specified period not to exceed sixty (60) days. If the HPC fails to act on the request
within the sixty (60) day period, unless the applicant requests and the Commission
grants an extension of such time, it shall constitute an approval by the HPC of the
request. The HPC's recommendation must be transmitted to the City Clerk, who shall,
in turn transmit the recommendation and application to the City Council for
consideration.
The HPC, in determining whether to recommend approval or denial of the request, shall
consider whether the proposed conservation district, or the expansion or alteration of
the district, has historic or architectural significance to the community.
The City Council, at its next regular meeting following receipt of the HPC's
recommendation, shall approve or deny the request.
Removing 3040 Elm Street from the Brewery Conservation District will not eliminate the
Building Code violations which exist due to the deteriorated condition of the property.
Additionally, removal of 3040 Elm Street from the Brewery Conservation District will
eliminate its eligibility for the low- interest historic preservation loan program.
RECOMMENDATION
LK Development & Storage initiated the process under Title 16 of the City Code, the
Unified Development Code, to be removed from a conservation district. At the
December 7, 2009 City Council meeting the Council considered the request and
referred the matter to the City Manager. At this time the LK Development & Storage
request should again be placed on a City Council agenda. The Council must then
determine whether to:
1) Approve the request,
2) Deny the request,
3) Set the request for consideration at a subsequent meeting,
4) Set the request for a public hearing, or
5) Refer the request to the commission for a recommendation before voting on the
request.
It is the staff recommendation that the matter be referred to the Historic Preservation
Commission for evaluation and analysis.
Enclosure
cc: Crenna Brumwell, Assistant City Attorney
Rich Russell, Building Services Manager
Dave Johnson, Assistant Planner
KANE, 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 13' Street
Dubuque, IA 52001
December 2, 2009
Of Counsel:
Gary K. Norby
Phone: (563) 582 -7980
Facsimile: (563) 582 -5312
E- mail:bkane @kanenorbylaw.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 in Dubuque, Iowa be removed from the city's historic conservation
district. This removal is requested pursuant to section 14- lA- 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 XIV 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 ".
December 2, 2009
Page 2
KANE, NORBY & REDDICK, P.C.
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 on the open market and operates a legal commercial leasing activity
in its building. The City, apparently of its own volition and notwithstanding the objection 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 adjoining
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 ofthe United States and Iowa Constitutions, prohibits
any unlawful administration by officers of a political subdivision which result in unequal application of the
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) of the 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 ofthe 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,
BJK/jpk
cc: Ms. Crenna Brumwell
U
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Legend
Brewery Neighborhood
Broadway Street Neighborhood
Downtown Neighborhood
Fenelon Place Neighborhood
Fourth Street Neighborhood
Jackson Park Neighborhood
Third Street Neighborhood
Washington Street Neighborhood
West Eleventh Street Neighborhoo
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DUB E
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Conservation District Map
Base data provided by Dubuque County OIS