Asbury Plaza Detention Facility1141 Main Street
Dubuque, IA 52001
Telephone: (563) 557-1885
Facsimile: (563)557-2335
DAY & HELLMER, P.C.
Attorneys at Law
Please reply to the Dyersvilte Office
ROBERT L. DAY, JR.
WERNER HELLMER
THOMAS J. STRAKA, Associate
137 First Avenue East
P. O. Box 342
Dyersville, IA 52040-0342
Telephone: (563) 875-9733
Facsimile: (563) 875-8275
Terry Duggan, Mayor
City Hall
50 West 13th Street
Dubuque, Iowa 52001
June 16, 2003
Dear Mayor Duggan:
On May 6, 2003, I submitted a letter to your office inquiring if Rubloff Development Group,
Inc., owner of the Asbury Plaza shopping mall, was in compliance with any and all requirements
concerning the installation of the required water detention basin for said development. A review of
the city council records reflects that the correspondence was "filed and received." On behalf of my
clients, Joseph and Judy Riniker, I wish to inform you that the matter has not been resolved to my
clients' satisfaction.
On May 30, 2003, I received a facsimile from the city manager's office which included
correspondence fi:om City Manager Michael C. Van Milligen to you and members of the City
Council. Addressed to you, Mr. Van Milligan's letter of May 28, 2003, indicated that the Assistant
City Engineer Gus Psihoyos reported that the "facility had been in operation since February 2003."
(Attachment 1) I discussed the city's response with my clients who a~ee that it did not adequately
answer the question posed to you. Rather than answering the question of whether or not the
detention basin met all of the requirements ora proper detention basin, the answer merely states that
the detention basin "has been in operation since February 2003."
I placed a phone call to the City Manager and expressed my concern about this language and
whether or not the facility in fact has been constructed properly. I appreciated the rapid response by
Mr. Van Milligan, who set up an onsite visit at Asbury Plaza with members of the city engineering
and planning departments the same afternoon. Present for the short meeting to view the purported
detention basin was Mr. Psyihoyos, Mr. Kritz, a facility supervisor for Rubloff Development Group,
Mr. Pancratz, my clients, several other gentlemen and the undersigned.
From my observation and discussion with city representatives, it surfaced that the Rubloff
Development Group was given permission to construct a temporary earthen dam to satisfy the
requirement for a detention basin so the group could receive occupancy permits to allow other stores
to open despite the fact that they received warnings that no further occupancy permits would be
issued until they complied with the requirements for constructing a proper detention basin. When
questioned, Mr. Kritz responded that the permit was issued because the parking lot had already been
paved, and the water runoff would have been the same whether or not occupancy permits were
issued. My clients find this, and other responses unacceptable. I find it interesting to note that in
the discussion section in a memorandum to the City Manager dated January 29, 2003, states that
"while the detantion basin was graded according to the approved site plan, the outlet structure was
not installed at that time. Moreover, the detention basin should have been fully operational prior to
the parking lot paving operations." (Attachmc~nt 2) The point remains that the city lost major
leverage for getting a proper permanent detention basin installed in a timely fashion by permitting
the Rubloff Group to construct a temporary earthen dam thus eliminating any incentive for the
group to comply as was originally intended. In most developments the installation of a storm water
detention basin is made an immediate priority before any further development or occupancy is
permitted. The concern is obvious; erosion and silt control measures are paramount when vast
acreage has been excavated.
In this instance the construction of a temporary dam does little, if anything to adequately
control storm water runoff. In its present stage, this detention basin simply looks like a simple ditch
with a 20-inch diameter plastic or similar matm-ial drainage pipe going under the earthen dam. In
essence, this structure does not detain anything. Furthermore, it was noted that when the contractor
moved earth from the adjacc~nt land to create the dam, it created another gully that now drains water
runoff from other excavated acreage into the drainage basin in front of the temporary dam!
In a letter dated January 27, 2003, to Robert E. Dunning of Rubloff Development Group,
Associate Planner Mr. Kritz stated as follows in subparagraph two: "As of January 22, 2003,
inspection by City Engineering staff found that the detcmtion basin outlet structure has yet to be
constructed. In addition, the required ditch improvements downstream of the detention basin have
not yet been completed. The City Engineering Division has received complaints regarding this issue
and this work also needs to be completed prior to the opening of Phase I." He also stated that based
on his observation, "work is progressing toward most of the stores in Phase I being open for business
in March 2003. However it appears Michael's and Petco will be ready to open in Febmary. These
two issues need to be completed prior to the opening of the major retailers, excluding Michael's and
Petco. I will not be able to allow the issuance of occuoancv permits for any stores beyond that of
Michael's and Petco until the two above issues have been addressed." (Emphasis added)
(Attachrncmt 3) Why were the occupancy permits allowed to be issued?
I encourage you and the members of the City Council to visit the site. I think you will reach
the same conclusion my chents did. The construction of the temporary earthen dam did little, if
anything, to address serious erosion and runoffconcems existing at Asbury Plaza. Although
additional acreage has been excavated for future development, you will also note that no efforts at
erosion control such as seeding down the soil has taken place to the detriment of all landowners
downstream who must cope with heavier dosage of silt and increases in volume and velocity of
storm water runoff. My clients seriously doubt whether the Departrnent of Natural Resources would
approve of the existing conditions. Enclosed for your information are several pictures that will show
the nature of the basin and also the extent of the soil ~rosion problem. (Attachment 4)
On behalf of my clients, under the Iowa Open Records Law, I respectfully request copies of
any and all engineering documents and any and all correspondence and memorandums addressing
the drainage issues with the developers and various sections of City Government including but not
limited to the City Planning and Engineering Deparmaents. I also request to have this item placed on
the next City Council Meeting Agenda so my clients and I may address the City Council personally.
Thank you for your consideration.
By:
Sincerely,
DAY & HELLMER, P.C.
Werner Hellmer
WH/jlb
cc: Joseph and Judy Riniker
3
MEMORANDUM
May 28, 2003
TO;
The Honorable Mayor and City Council Members
FROM: Michael C. Van Milligen, City Manager
SUBJECT: Wemer Hellmer Drainage Inquiry
In response to the May 6, 2003 letter from Mr. Werner Hellmer about the Asbury Plaza
Stormwater Detention Facility, Assistant City Engineer Gus Psihoyos reports that the
facility has been in operation since February 2003,
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, Assistant City Engineer
Mike Koch, Public Works Director
Attacbment 1
MEMORANDUM
January 29, 2003
TO:
FROM:
SUBJECT:
Michael C, Van Milligen, City Manager
Michael Koch, Public Works Director ~
Asbury Pl_~Ta Detention Facility
INTRODUCTION
This memo is in response to your inquiry into the construction timetable for the Asbury
Plaza detention facility,
DISCUSSION
The detention facility is normally constructed during the grading operations. While the
detention basin was graded according to the approved site plan. the outlet structure was
not installed at that time. Moreover, the detention basin should have been fully
operational prior to the parking lot paving operations.
On November 26, 2002, City Engineering staff inspected the site, noted the incomplete
nature of the facilities, and informed Kyle Kritz (see attached memo) as to the
incomplete nature of the drainage facilities. Subsequently, Kyle contacted Rubloff
Development Group. From their conversation, it was understood that the detention
facility would be completed in December.
On January 21, 2003, following an inspection of the site, City Engineering staff
enlightened Kyle on the incomplete nature of the facilities. As a result, Kyle informed
Rubloff Development Group (see attached letter) that occupancy permits would be
withheld until the stormwater drainage facilities are completed.
Based on Kyle's letter, the drainage facilities should be completed before Mamh of
2003.
Cc;
Gus Psihoyos, Assistant City Engineer
Laura Carstens, Planning Services Manager
?;K')~i~: ~,,fif~i'~,ssociat e'Pta nr~er..e
Deron Muehfing. Civil Engineer
attachments
Attaclnment 2
Janua~ 27,2003
CERTIFIED MAIL
Robert E. Dunning
Rubloff Development Group
4949 Hemson Ave - ~00
Rockford IL 61108'7987
Dear Bob:
This letter is regarding two issues ~oncerning the development of Asbury Plaza Shopping Center
here in Dubuque that require immediate attention.
1)
2)
The final design of the signalized intersection tor the east frontage mad and Asbury Road
needs to be submitted, reviewed and approved by City Engineering Division and the
signals installed prior to the opening of Phase L ~ traffio ~'~J submitled by Sny~er &
Aaso~-~as for Phaea I projected that I~e Inter~ec~ion would drop to a Level Of Sereico F
if the intersection remains stop con'eolled, Temporaly signals may be n~_ anj given
the time frame of store openings.
As of January 22, 2003, inspection by City Engineering staff found that the detention
basin outlet structure has yet to be constructed. In addition, the required ditch
improvements downstream of the detention basin have not yet been completed. The City
Engineering Division has received complaints regerding this issue end this wod~ also
needs to be com~lated prior to the ope~iag of Phase I.
Based on my observations, work is progressing toward most of the stores in Phase I being open
for business in March 2003. However, it appears Mlchaers and Petco will be ready to open in
February_ TI~_-_~_ two iseuas nee~l to be completed pdor to the opening of the major retailers,
excluding Michael's and Pefco. I will not be able to allow the issuance of _c~_cupency permits for
any stores beyond that of Michaers and Palco until the two above issues have been addressed.
Please contact me if you have any questions about the information in this Istler. ff you have
questions concerning the traffic signals, please contact Dave Ness at 563-589-4270. If you have
questions concerning the sto~Tn water detention issues, please contact Deron Muehnng alS0 at
S63-58g-4270.
Associate Planner
cc: Mike Koch, Public Wor~s Director
Rich Russell, Building Services Manager
~[~on Muehring, Civil Engineer
_-- Dave Ness. Civil Er~qineer , ,
Atta~t 3
Attachment 4
MEMORANDUM
July 2, 2003
TO:
FROM:
SUBJECT:
The Honorable Mayor and City Council Members
Michael C. Van Milligen, City Manager
Asbury Plaza Detention Basin
Assistant City Engineer Gus Psihoyos is providing an update on the Asbury Plaza
Detention Basin.
This information is in response to a June 16, 2003 letter from Mr. Werner Hellmer
expressing concerns about the Asbury Plaza Stormwater Detention Basin and its
operation.
In October of 2002, paving and the building shells for the first Phase of Asbury Plaza
were completed.
Inspection by City staff in January of 2003 revealed that the stormwater detention basin
was not operational; stormwater that flowed into the basin was allowed to flow
unimpeded out the other side of the basin. At the urging of Engineering staff, Rubloff
Development Group re-graded the detention basin and installed an outlet control
structure in February of 2003.
The detention basin is operating with a temporary outlet pipe and is detaining
stormwater, however, because of erosion the effectiveness of the facility has generally
deteriorated and City staff continues to insist that Rubloff Development Group construct
the detention basin as required by the approved site plan.
Storm sewer pipe is at the site and McDermott Excavating is set to begin work as soon
as survey stakes are installed. In discussions with Larry McDermott, the final work will
begin within a couple of days and the installation of the permanent control structure and
associated downstream piping will be completed within 3-4 weeks.
Attached is a letter to Rubloff Development Group giving notice that the detention basin
must be brought into compliance with the approved site plan by the end of July 2003.
Mr. Hellmer also is concerned about erosion control on the site. The City has no
ordinance on erosion control. Mr. Hellmer will need to contact the Iowa Department of
Natural Resources for enforcement of their state permit.
Since enforcement of site plan non-compliance can take sixty (60) days for a final
resolution, staff is recommending the following modifications to city ordinances be
initiated:
1)
2)
3)
Modify the Zoning Ordinance to condition the issuance of a building permit
and an occupancy permit to site plan compliance so that Building Services
could withhold a building permit or occupancy permit until a site plan is
brought into compliance;
Modify the Buildings and Building Regulations chapter of the City code to
include the same language;
Adopt a new ordinance that reflects the City's current detention requirement
policy, establishing time limits (or deadlines) .for the construction of a
detention facility, and penalties to facilitate compliance with the ordinance. In
general the ordinance will require that a detention basin be constructed prior
to paving or be subject to a civil citation.
I concur with the recommendation and respectfully request Mayor and City Council
approval.
Michael C. Van Milligen
MCVM/jh
Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psihoyos, Assistant City Engineer
Mike Koch, Public Works Director
MEMORANDUM
July 1, 2003
TO:
FROM:
SUBJECT:
Michael C. Van Milligen, City Manager
Gus Psihoyos, Assistant City Engineer
Asbury Plaza Detention Basin
INTRODUCTION
This memorandum is in response to the letter dated June 16, 2003, from attorney
Wemer Hellmer, addressed to Mayor Terrance Duggan, expressing concerns regarding
the Asbury Plaza stormwater detention basin and its operation.
Mr. Hellmer states that his clients, Joseph and Judy Riniker, property owners
neighboring on the Asbury Plaza development, are not satisfied with the current
condition of the Asbury Plaza detention basin.
City Staff agree with that position and have been working with Rubloff Development
Group, owner of Asbury Plaza Shopping Center, to bdng the site into compliance with
municipal and state regulations.
BACKGROUND
In October of 2002, paving and the building shells for the first Phase of Asbury Plaza
were completed.
Inspection by City staff in January of 2003 revealed that the stormwater detention basin
was not operational; stormwater that flowed into the basin was allowed to flow
unimpeded out the other side of the basin. At the urging of Engineering staff, Rubloff
Development Group re-graded the detention basin and installed an outlet control
structure in February of 2003.
DISCUSSION
The detention basin is operating with a temporary outlet pipe and is detaining
stormwater, however, because of erosion the effectiveness of the facility has generally
deteriorated and City staff continues to insist that Rubloff Development Group construct
the detention basin as required by the approved site plan.
Storm sewer pipe is at the site and McDermott Excavating is set to begin work as soon
as survey stakes are installed. In discussions with Larry McDermott, the final work will
begin within a couple of days and the installation of the permanent control structure and
associated downstream piping will be completed within 3-4 weeks.
Mr. Hellmer is most likely correct that IDNR would not find the site acceptable in terms
of erosion and sediment control. Grading for Asbury Plaza began in the summer of
2001. At that time, a pollution prevention plan was sent IDNR for approval. The
pollution prevention plan documents erosion and sediment controls to be implemented
during construction to prevent sediment from leaving the site and is required as part of a
National Pollution Discharge Elimination System (NPDES) permit. Subsequently, IDNR
issued an NPDES permit to Rubtoff Development Group. The NPDES permit requires
that stabilization measures such as temporary seeding must be initiated by the 14th day
after the last disturbance. There is evidence that the undeveloped portion of the site
was seeded. However, the majority of the site can be characterized as bare soil.
Because the need for an erosion policy has been identified as a City Council pdority and
the City of Dubuque has pledged to adopt an erosion control ordinance to satisfy the
City's NPDES Phase II permit, an erosion and sediment control ordinance will be
drafted and presented to the City Council in the months ahead. Despite the lack of
specific policies, ordinances, or enforcement measures pertaining to erosion and
sediment control at this time, City staff continues to promote and influence the use of
erosion and sediment control measures.
Since the Iowa Department of Natural Resources is the governing body for the National
Pollution Discharge Elimination System (NPDES) permit, we would encourage Mr.
Hellmer or his clients, to contact the DNR regarding the erosion control measures
currently on the Rubtoff site.
Mr. Hellmer discussed the issue of withholding occupancy permits from lessees as a
means to enforce the completion of the detention basin. Staff discussed this issue with
Corporation Council Barry Lindahl in January of 2003. Mr. Lindahl indicated that there
is no specific language connecting site plan compliance with the issuance of occupancy
permits. There is no change in the level of stormwater runoff if the business is closed or
open for commerce. Also, withholding an occupancy permit from a lessee would simply
penalize a party that has no control over the construction of the detention basin.
To help resolve any future issues related to the construction of a stormwater detention
facility in conjunction with a site plan, City staff will now require that a detention basin
must be completed pdor to paving (or in concert with paving if it is a parking lot
detention facility) or the development will be non-compliant with the approved site plan.
In addition, because the enforcement of site plan non-compliance can take sixty (60)
days for a final resolution, City staff is recommending the following modifications to the
Code of Ordinances:
2
1)
2)
3)
Modify the Zoning Ordinance to condition the issuance of a building permit
and an occupancy permit to site plan compliance so that Building Services
could withhold a building permit or occupancy permit until a site plan is
brought into compliance;
Modify the Buildings and Building Regulations chapter of the City code to
include the language referred to in paragraph 1 above in the Zoning
Ordinance for the reasons stated above;
Adopt a new ordinance that reflects the City's current detention requirement
policy, establishing time limits (or deadlines) for the construction of a
detention facility, and penalties to facilitate compliance with the ordinance. In
general the ordinance will require that a detention basin be constructed pdor
to paving or be subject to a civil citation.
Please find the attached letter to Mr. Dunning of Rubloff Development Group giving him
notice that the detention basin must be brought in compliance with the approved site
plan by the end of July 2003.
If you have any questions or concems on the status of this matter please contact me.
attachment
cc: Michael A. Koch, Public Works Director
Barry Lindahl, Corporation Counsel
Laura Carstens, City Planner
Kyle Kdtz, Associate Planner
Rich Russell, Building Services Manager
Deron Muehdng, Civil Engineer
3
Engineering Division
City I-Ian
50 West 13th S~eet
Dubuque, IA 520ffi~1864
(563) 5894270 office
(563) 5894205 fax
.July 2, 2003
Mr. Robert E. Dunning
Rubloff Development Group
4949 Harrison Avenue - #220
Rockford, IL 61108-7987
RE: Asbury Plaza Detention Basin and Erosion Control Measures
Dear Mr. Dunning:
As I advised you a few weeks ago, two issues with the Asbury Plaza
development have not been resolved to the City's satisfaction:
As of today, July 2, 2003, the existing detention basin does not reflect
the detention basin required by the approved site plan. While it is
encouraging that McDermott Excavating is under contract to complete
the work, that materials have been delivered to the site, and that the
work could be completed in the next 3-4 weeks, I must inform you that
if the outlet structure and basin embankments (including seeding or
sodding) is not constructed to reflect the detention basin required by
the approved site plan by the close of the business day on July 31,
2003, a civil citation will be issued for the appropriate civil penalty.
Rubloff Development Group was issued an NPDES General Permit
No. 2 by the Iowa Department of Natural Resources (IDNR) for
stormwater discharges associated with construction activities. Such a
permit requires that stabilization measures (such as temporary
seeding) must be initiated by the 14th day after the last disturbance.
There is evidence that seed was applied to the undeveloped portion of
the site. However, as of today, July 2, 2003, the majodty of the
undeveloped portion of the site can be characterized as bare soil and
is highly susceptible to erosion. I request that you honor your NPDES
permit with the IDNR and re-initiate efforts to protect the barren soil by
establishing vegetation and other appropriate erosion and sediment
control measures.
Servk:e People IntegTity Responsibility Innovation Tearnwork
Please contact me if you have any questions about the two unresolved matters.
You can reach me at 589-4270.
cc: Michael C. Van Milligen, City Manager
Michael A. Koch, Public Works Director
Barry Lindahl, Corporation Counsel
Rich Russell, Building
Deron Muehdng, Civil Engineer
Laura Carstens, City Planner
Kyle Kdtz, Associate Planner
Sincerely,
Gus Psihoyos
Assistant City Engineer