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"
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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
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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
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Phone: 563-556-1421
Fax: 563-582-3334
Cell: 563 -543 -3366
Herrigrealty @live.com
Masterpiece on the MII issippi
BARRY LINDAjH
CITY ATTORNEY
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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
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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
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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.
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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.
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Page (3)
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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
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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
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Page (5)
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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)
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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
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