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Request to Reconsider_Radford Court RezoningJOHN HERRIG REALTY 13750 SURREY LANE DUBUQUE, IOWA 52002 November 17, 2010 Honorable Mayor and city Council Members: I, John W. Herrig, respectfully request the council members to reconsider and bring back to the December 6, 2010, council meeting, the Application for Rezoning regarding the Radford Road rezoning request. There was nothing malicious on my part asking for the zoning request to be tabled; only the need for time to establish bidding costs and final cost of the project to present to investors for their approval. The costs and bidding of the project was coming in slow and the, Return on Investment, to the investors could not be finalized therefore, the project to proceed was not approved. Due to the cost of the Application and the tremendous amount of hours a ?dy spent to secure bidding and layout for the project, I truly hope you grant me your full consideration and approval to be heard. Sincerely, /fOhn W. Herrig" /-/;'//'; C.- RECEIVED 10 NOV 18 PM2 :45 City Clerk s Office Dubuque, IA Phone: 563 - 556 -1421 Fax: 563 - 582 -3334 Cell: 563 - 543 -3366 Herrigrealty@live.com \ 10 \ 217 \2•12-0•ASSAWSKSNSPAASSil2-01_Awc..,-,,,,, gimp.° op. _ry /-'--.---..----...,,. 4, 0 ' • / ,-r ., % .... 7 7 • \ ) 11111 ( 1 1,11 . \ , I — 1 _ _ !!!ii f I Vr1 I i III . ii,m,111:1, / ;/;/;/;,:o 1 ..„, ,I\I 1,1,11iriTyill, /: •!fr /,:/\:. I if 1 r / / / 1, I I ; 1 1 !15 1 1 t --- -- r \ I , — ) 1 1 1 1 1 I ! ill ' 11 il - i I !! ,,../.' I 1 1 1? I ' A I il ii;i ii 1 ; '' 11 i n /) .I,' i f ! I 0 I H'I . q --- I , ■ j i 1 , --1 . 1 1 , i , i 1 , 1 1 11;; ..----- i ?!, 1 1 1 ■ i I 1 ii f 1 t 1 I II; [ 1 il 1 \ \ r / 1 •-- I r\I II" _ — -- -- • Is / 1 \_._.), \ — I --- ) 1 1/ t susSIsSt■ mammon se ASSISSOSOLVARSAIN. BISSUQUE111 SIM w.:104415.4. FAX AROMS111 t. 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All map information shown is for the forgoing purpose and does not represent a survey of land. r c7 e e - Vic, fl y 0 -/‘ 64_ r-e- Col 6 �cX /rte 0 1 z'i• a /7 - a JOHN HERRIG REALTY 13750 SURREY LANE DUBUQUE, IOWA 52002 November 22, 2010 Addendum to Request In reference to November 17, 2010, request to be heard by the Dubuque City Council pertaining to the Radford Court/Road rezoning issue. Attorney Mark Sullivan madereference to the fact that the present zoning of C -2 should not be changed to R -4, per not showing adequate cause of said change. First, Applicant could not address said zoning change without first being given city council hearing time in front of council members in open meetings law. Can not address the council!!! Per law, outside of council meeting. Second, upon given equal time (Per verses objectors) I strongly feel I can present a strong case why the zoning can be and should be changed! Respectfully, John W. Herrig VI 'enbngn0 eorjjO s 1 ' !O 9S :Z Wd 6ZAONOL Phone: 563-556-1421 Fax: 563-582-3334 Cell: 563 -543 -3366 Herrigrealty @live.com Masterpiece on the MII issippi BARRY LINDAjH CITY ATTORNEY \_i • To: Mayor Roy D. Buol and Members of the City Council DATE: November 23, 2010 MEMORANDUM RE: Reconsideration Request of the Reclassification For Radford Court LLC Please disregard my memorandum dated November 22, 2010. I have reviewed the video of the November 15, 2010 City Council meeting. Following the public hearing, a motion to receive and file and waive the three readings failed to receive the necessary votes. The vote on that motion was Council Members Connors and Jones in favor, and Mayor Buol, Lynch, Resnick and Braig against. There was no further motion made with respect to the reclassification. Section 9 -5.3 of the B of the Unified Development Code provides that "following the public hearing, the council shall act to adopt, table or reject the reclassification request." I failed to bring that requirement to the attention of the City Council. Therefore, technically there was no action taken with respect to the reclassification request. I would suggest that the following action be taken at the December 6 City Council meeting: 1. A reconsideration motion should be made and seconded, and if approved the reclassification request would be back before the Council. If no motion is made and approved, the matter is really in legal limbo. 2. If the motion to reconsider is made and approved, the City Council has two options: a. Mr. Herrig has requested an opportunity to address the Council. Since the public hearing was closed, it would be necessary to reopen the public hearing to allow Mr. Herrig to address the Council and to allow anyone opposed to the reclassification an opportunity to respond to Mr. Herrig's comments. A motion to set the matter for public hearing for the December 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 20 City Council meeting would be necessary. The reclassification request should then be tabled to the December 20 meeting. b. If the motion to set the public hearing fails, or if there is no motion to set the public hearing, a motion must be made to adopt, table or reject the reclassification request. That motion could be preceded by a motion to waive the three readings. If a motion to waive the three readings is made but does not pass or if the motion to waive the three readings is not made, then a motion would be in order to table, reject, or adopt as a first reading only. I apologize for any confusion or inconvenience. If you have any questions, please call me at your convenience. BAL:tls Attachment cc: Michael C. Van Milligen, City Manager Jeanne Schneider, City Clerk Laura Carstens, Planning Services Manager Mark Sullivan, Esq., Reynolds & Kenline John Herrig F: \USERS 1tstecklelLinda h l\ Memos \MayorCou ncil_Joh nHerrigReconsiderationofRezoningRequest _l 12310.doc THE CITY OF DUB Masterpiece on the Missis BARRY LINDAH CITY ATTORNE To: DATE: RE: BAL:tls cc: Michael C. Van Milligen, City Manager Jeanne Schneider, City Clerk Laura Carstens, Planning Services Manager Mark Sullivan, Esq., Reynolds & Kenline John Herrig MEMORANDUM Mayor Roy D. Buol and Members of the City Council November 29, 2010 Reconsideration Request of the Reclassification For Radford Court LLC This is a follow -up to my Memorandum of November 23, 2010. The Mayor has reminded me that the City Council always allows a reclassification applicant to address the council in rebuttal to comments that are made during the public hearing. An alternative to reopening the public hearing, should Mr. Herrig's reconsideration request be approved, would be to allow Mr. Herrig to offer a rebuttal to the comments made during the public hearing. The rebuttal would be strictly limited to responding to comments made during the public hearing, however, and any comments beyond a proper rebuttal would have to be disregarded by the City Council unless you would then conclude that the public hearing should be reopened. F:\ USERS \tsteckle \LindahI\ Memos \MayorCou ncil_John HerrigReconsiderationOfRezoningReq uestRebuttal_112910.doc WILLIAM 1. MAIERS CHADWYN D. COX MARK 1. SULLIVAN JOHN T. NEMMERS TODD N. KLAPATAUSKAS* KIM C. RODDICK* NATALIA H. BLASKOVICH COLISTA K. SCHMITT "' GINA L. KRAMER" CE's_ _a r. i...'V"5 The Honorable Mayor Roy Buol & Members of Dubuque City Council Dear Mayor Buol & City Council Members: Ell REYNOLDS & KENLINE L,L.P. LAW FIRM SINCE 1890 1 December 2, 2010 110 EAST 9TH STREET P.O. BOX 239 DUBUQUE, IA 52004 -0239 (563) 556-8000 (563) 556 -8009 _ OFFICE@RKENLINE.COM WWW.RKENLINE.COM Q rn C7 1 1'V "U RE: November 17, 2010 Request for Reconsideration of John W. Herrig, Regarding Rezoning Application Submitted by John Herrig /Flint Drake to Re -zone Property from C -2 Neighborhood Shopping Center District to R -4 Multi - Family Residential District We respectfully request that you deny the reconsideration application filed by John W. Herrig on November 17, 2010. As of the time I am submitting this letter, the City Clerk was not able to tell me what if anything will be on the agenda for the December 6, City Council meeting as to this issue. A brief chronological history of this application may be of benefit to you: A rezoning application form signed by Flint Drake as property owner and John W. Herrig as applicant/agent, dated 8/30/10 was filed with the Planning Services Department of the City of Dubuque. The reason listed in that application was to "re- zone for multi - family units ". Appropriate notices were sent out to property owners owning property within 200 feet of the parcel prior to the October 6, 2010 Zoning Advisory Committee meeting where the matter was initially considered. A rezoning staff report dated October 6, 2010 was submitted to the Zoning Advisory Commission. r lz/ dam/ m rn Page (2) RI REYNOLDS & KENLINE LIP, LAW FIRM SINCE 1890 The matter proceeded to public hearing before the Zoning Advisory Commission on October 6, 2010 and by a vote of 4 to 3 the matter was approved and passed on to the City Council for consideration. At that Zoning Advisory Commission meeting we were all told that the matter would come before the City Council for a public hearing on October 18, 2010. A letter dated October 12, 2010 was forwarded to the City Council regarding this matter signed by Jeff Stiles, chairperson of the Zoning Advisory Commission. The matter was scheduled for a public hearing to be held at the October 18 City Council meeting and that public hearing was listed as an agenda item in the meeting notice and agenda that went out for the October 18, 2010, Dubuque City Council meeting. I sent a letter to the Mayor and City Council members dated October 13, 2010 setting out in detail our objections to this rezoning request, and we provided a number of color photographs. On or about October 14 or 15 the applicant John Herrig apparently conveyed to the City Clerk a request that the matter be tabled and removed from the October 18, 2010, City Council meeting agenda and moved to November 1, 2010 instead. Because was going to be out of town on November 1, 2010, I requested that if the matter was reset that it be reset for November 15, 2010, so that I would have an opportunity to appear and represent my wife, Marna Sullivan's interest in opposing this rezoning request. At the October 18, 2010 City Council meeting, the matter was in fact tabled and rescheduled for public hearing on November 15, 2010. Once again, it was on the City Council agenda for that meeting when that meeting notice and agenda was posted. At 3:06 p.m. on November 15, 2010, the date that the matter was to come before the Dubuque City Council for the second time for a public hearing, the applicant submitted a written request to the City Clerk requesting that the matter again be tabled and delayed until the December 6, 2010, City Council meeting. No reason for this request was indicated in the written request from applicant dated November 15, 2010. (A copy of that request is attached hereto). At the City Council meeting on November 15, 2010, the City Council declined to again continue and reschedule the public hearing on this rezoning application. Instead the public hearing was held as scheduled. Many affected property owners appeared at the public hearing and voiced their concerns and objections to this rezoning request. 2 Page (3) R{ REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 on behalf of the applicant. No one spoke at the public hearing in No one appeared support of the rezoning application. At the conclusion of the public hearing the matter went back to the City Council table for discussion and consideration. It was clear that most (5 of the 6 present) of the City Council members opposed this rezoning request. A motion was made to receive and file the application and waive the three readings. That motion failed on a vote of 4 against and 2 in favor. Mayor Buol told all those in attendance that the rezoning application had failed. Apparently a further motion should have been made by the City Council to accept or deny the actual rezoning application. That was not done. After the vote Councilman Jones said that he voted yes to the motion to receive and file but intended to vote no on the actual motion to rezone, which was never made. Then on November 17, 2010, the applicant submitted a request for reconsideration at the December 6, 2010 council meeting. City Attorney Barry Lindahl authored a memorandum to the City Council regarding that rezoning request dated November 22, 2010. He notes in that memo: "Because the vote to deny the rezoning was unanimous, any of the City Council members who voted may move for reconsideration at the next regular City Council meeting. If any of you intends to do so, I would request that you advise the City Clerk prior to the meeting so the reconsideration motion can be included on the agenda." Then on November 23, 2010, City Attorney Barry Lindahl authored another memorandum to the City Council asking that they disregard the memorandum dated November 22, 2010. The November 23, 2010 memorandum noted the procedural deficiency that occurred at the November 15, 2010, City Council meeting. City Attorney Lindahl suggested three possible courses of action to correct the deficiency and respond to the applicant's request for reconsideration. The first alternative would be not to make a reconsideration motion which would leave the matter in legal limbo according to the City Attorney. The second option set out was to make and approve a motion to reconsider. If that is done there are two other sub - options set out. If the council chooses to allow Mr. Herrig an opportunity to address the council the matter would have to be re- opened for public hearing to allow both Mr. Herrig and anyone opposed to the reclassification an opportunity to address the council. A motion to set the matter for public hearing for the December 20 City Council meeting would be necessary. Accordingly, the 3 R{ REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 reclassification request would have to be tabled until the December 20, 2010, meeting, and re- opened for another public hearing at that time. Page (4) The third alternative would be to deny the applicant's request for another public hearing. If there is no motion to set the matter for another public hearing or if such motion is made but fails, the City Attorney recommended that the council make a motion to adopt, table or reject the rezoning classification request. The motion could be preceded by a motion to waive the three readings. If a motion to waive the three readings is made but does not pass or if the motion to waive the three readings is not made, then a motion could be made to table, reject or adopt as a first reading only. The City Attorney then sent a third memorandum to the Mayor and Council dated November 29, 2010. That memorandum talks about allowing Mr. Herrig an opportunity to offer rebuttal to the comments made during the public hearing. We are strongly opposed to such a procedure and believe this would set a very dangerous and undesirable precedent for future rezoning requests and other matters requiring public hearings before the City Council. I believe such a procedure would violate the due process rights of all of those opposed to the rezoning request for several reasons. There would be no prior notice to the public that there will essentially be a continuation or re- opening of the public hearing for the limited purpose of allowing Mr. Herrig an opportunity to address the council if that were to occur at the December 6, 2010 City Council meeting. In a normal rezoning procedure before the Council the public hearing is listed as such on the meeting agenda that goes out many days in advance of the City Council meeting. Because the burden of persuasion rests with the applicant, the applicant is always asked to present its case to the Council first. Those opposed, who take the time to appear for the public hearing, then have the opportunity to speak at the public hearing and respond to whatever case in support of the rezoning application the applicant has made at the public hearing. While we and others appeared at the November 15, 2010 public hearing, because the applicant chose not to attend and chose not to present any argument for the rezoning application, we were placed at a procedural disadvantage from the start. Had the applicant chosen to attend the November 15, 2010 public hearing, he would likely have been given an opportunity to respond to concerns expressed by all of those who spoke against the rezoning application. To reopen the public hearing at some later date without notice and provide to Mr. Herrig the opportunity to address the Council, which he already voluntarily waived, by not appearing at the scheduled public 4 Page (5) R{ REYNOLDS & KENLINE L.L.P. LAW FIRM SINCE 1890 hearing, would be clearly unfair and prejudicial to those who oppose the rezoning application. That is why we strongly urge that you follow the final alternative set out by your City Attorney in his November 23, 2010 memorandum and deny the applicant's request for any further public hearing, deny the applicant's request for reconsideration and vote to deny the rezoning application. In his November 17, 2010 letter to the Mayor and City Council members, Mr. Herrig indicates that he needed time to establish bidding costs and final costs of the project to present to investors for their approval. He says: "The costs and bidding of the project was coming in slow and the return on investment to the investors could not be finalized. Therefore the project to proceed was not approved. Due to the cost of the application and the tremendous amount of hours already spent to secure bidding and layout for the project, I truly hope you grant me your full consideration and approval to be heard." It would appear that Mr. Herrig has put the cart before the horse. The multi- family housing project that he has proposed for this site is not legally possible under the current C -2 zoning classification. If he has in fact expended any substantial amount of time or money on such a speculative project, that certainly is not a valid reason for granting the proposed rezoning classification. A prudent developer would certainly secure the proposed zoning change before expending much time or money on such a speculative proposal. On two separate occasions the applicant has now failed to appear for a scheduled public hearing before the Dubuque City Council to provide any evidence or proof that the original zoning classification of this property as C -2 neighborhood commercial was either a mistake or that circumstances or conditions affecting the property in question have so materially changed as to demand reclassification. Reclassification of property is a sensitive and important legislative function which, in the interest of maintaining uniform zoning policies and the integrity of the comprehensive plan, should only be exercised sparingly and under proper conditions. There has been absolutely no showing that those proper conditions exist with regard to this particular property and furthermore there has been no valid reason presented why this matter should be rescheduled yet a third time for a public hearing to afford the applicant yet another opportunity to appear before the council and attempt to make a case for rezoning. 5 Those of us who oppose this application have provided a great deal of written material and photos to the council and we voiced our concerns at the November 15, 2010 public hearing. Procedurally, the applicant should have presented his case first and we would then have had an opportunity to respond to his arguments. It would be unfair and highly prejudicial to allow the Applicant to appear on December 6 or Page (6) R{ December 20, 2010 and address the council on this issue. If he had appeared at either of the two previously scheduled public hearings on this issue he would have had his opportunity to present his case and respond to the neighbor's concerns. He waived that right by failing to appear, and for that he has no one to blame but himself. If Mr. Herrig is provided yet another public hearing on this issue there will be many affected property owners and tenants from the Sunnyslope area who will feel they have not been treated fairly by this process. If this reconsideration request is granted and the matter is rescheduled for yet another public hearing I will do everything in my power to see that each of the 72 affected property owners and tenants who signed petitions in opposition to this rezoning request are fully advised as to the Council's actions. I will urge all of them to appear before you at the December 20, 2010 meeting in order to voice their opposition to this rezoning request. Hopefully that will not be necessary. I think enough of your time and our time has already been expended on this issue. MJS /smp cc: City Attorney Barry Lindahl S: \WP \Shelli \Letter \Mark\Mayor Buol.wpd REYNOLDS & KENLINE LAW FIRM SINCE 1890 Sincerely, Mark J. Sullivan 6