Annex Asbury Motion to DismissCITY DEVELOPMENT BOARD
STATE OF IOWA
IN THE MATTER OF THE
CITY OF ASBURY VOLUNTARY
ANNEXATION INCLUDING NON-
CONSENTING OWNERS
NO. UA03-60 ASBURY
NOTICE OF MEETING TO CONSIDER
MOTION TO DISMISS
TO:
Cities of Asbury and Dubuque, Iowa Department of Transportation, Iowa Attorney
General, Dubuque County Attorney, East Central Intergovernmental Association,
Dubuque County Board of Supervisors and Public Utilities
You and each of you are hereby notified that the City Development Board will, pursuant
to Section 368.7 Iowa Code, consider the above captioned matter at its regular meeting at 1:00
p.m. on February 12, 2004, in the 2nd floor Main Conference Room, Iowa Department of
Economic Development, 200 East Grand Avenue,
Des Moines, Iowa.
The Board will consider the Motion to Dismiss and take further action on the proposal as
necessary. If you have any questions or wish further clarification, please contact me at (515)
242-4719.
CITY DEVELOPMENT BOARD
Steven R. McCann, Administrator
City Development Board
Prepared by: Steven McCann, Administrator 515.242.4719
IDED 200 E Grand Avenue, Des Moines, Iowa 50309
UA03-60 Asbury Motion to Dismiss
PROOF OF SERVICE
The undersigned hereby certifies that a true copy of the foregoing instrument was served
upon:
Ms. Patricia Sunsed
Asbury City Clerk
4985 Asbury Road
Dubuque, lA 52002-0411
Customer Relations
MCI Communications
PO Box 4600
Iowa City, IA 52244
Ms. Jeanne Schneider
Dubuque City Clerk
50 W 13th Street
Dubuque, IA 52001-4864
Dubuque Board of Supervisors
720 Central Avenue
Dubuque, IA 52001
Mr. Fred McCaw
Dubuque County Attorney
720 Central Avenue
Dubuque, IA 52001
Ms. Kelley Duetmeyer
ECIA
3999 Pennsylvania Avenue #200
Dubuque, IA 52002-2273
Mr. Fred Dean
Iowa Dept. of Trans.
8723 NW Blvd, PO 2646
Davenport, IA 52809
Cc: Jorge Zamora
Frank Smith
Frank Murray Smith Law Office
4215 Hubbell Avenue
Des Moines, IA 50317-4507
McLeod USA
6400 C Street, SW
Cedar Rapids, IA 52404
Mediacom
3033 Asbury Road
Dubuque, IA 52001
Mr. Paul Kitt
US West Communications
925 High Street
Des Moines, IA 50309
Alliant Utilities
1000 Main Street
Dubuque, IA 52001
Aquila
1015 Cedar Cross Road
Dubuque, IA 52002
Ms. Nancy Allen
AT&T Communications
120 Peachtree Street, NE
Atlanta, GA 30309
Said copy was mailed by certified mail, return receipt requested, in an envelope
addressed to them at the address shown above, with postage fully paid and by depositing same
in an United States Post Office depository in D~owa on the 6~ day of February 2004.
Ragina/Ost~ndorf, Boa-~<J Secrata~; .,"~
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Prepared by: Steven MoGann, Administrator 515.242.4719
IDfiD 200 E Grand Avonuo, Dos Moines, Iowa 50309
U^03-60 Asbury Motion to Dismiss
BEFORE THE CITY DEVELOPMENT BOARD
IN THE MATTER OF THE CITY OF
ASBURY ANNEXATION
CDB No. UA 03-60
MOTION TO DISMISS
tD
COMES NOW Dubuque and states:
1. This annexation proceeding should be summarily dismissed for the following
reasons:
Iai
The annexation violates Iowa Code §368.17(7) because it creates an
island. See Iowa Administrative Code §263-7.7(6) which states "[i]f
~mexation of the territory is statutorily barred pursuant to Iowa Code
§368.17, the board shall deny the application, stating in its order the reason(s)
for the denial." (Emphasis supplied).
Asbury did not give notice to, or hold a consultation meeting with, the
Dubuque County Board of Supervisors or the Dubuque Township
Trustees as required by Iowa Code §368.7(1)(b) prior to its public
hearing. See Iowa Code §368.7(I)(b) which states "[p]rior to notification in
paragraph 'c', the annexing city shall provide written notice to the board of
supervisors of each county and township that contains all or a portion of the
[d]
lei
territory to be armexed. *** The consultation meeting [with the Board of
Supervisors and township trustees] shall be held at least fourteen business
days before the applications in paragraph 'c' are mailed." (Emphasis
supplied).
Asbury did not provide written notice to Dubuque or any of the other
parties entitled to receive notice fourteen business days prior to Asbury
holding a public hearing on the annexation applications as required by
Iowa Code §368.7(1)(d). See Iowa Code §368.7(l)(d) which states "It]he
city shall provide written notice at least fourteen business days prior to any
action by the city council regarding the application, including a public hearing
***." Asbury's notice was sent thirteen days before it took action.
Asbury did not provide written notice to adjoining property owners prior
to acting on the annexation applications as required by Iowa Code
§368.7(1)(d). See Iowa Code §368.7(1)(d) which states "It]he city shall
provide written notice at least fourteen business days prior to any action by the
city council regarding the application including a public hearing *** to each
owner of property that adjoins the territory to be annexed unless the adjoining
property is in a city."
Asbury has failed to provide a legal description of the territory for which
annexation is sought as required by Iowa Administrative Code §263-
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[g]
7.2(2(c) and Asbury has failed to include, in its annexation, right of way
to the centerline of adjoining roads as required by Iowa Administrative
Code §263-7.2(2(c). See Iowa Adzninistrative Code §263--7.2(1) which
states that the documentation from Asbury must include "Ia] complete legal
description of the territory for which application is made, including the right
of way to the center line of all secondary roads ***."
The Asbury description of the annexation territory does not comply with
the statutow requirements for legal descriptions mandated by Iowa Code
§355.9. See Iowa Code §355.9 which states "Iai description defining land
boundaries written for conveyance or other purposes shall be complete,
providing definite and unequivocal identification of the property lines or
Boundaries. The description shall be sufficient to enable the description to be
platted and retraced."
The individual Asbury annexation applications violate Iowa Code
§368.7(1)(c) and Iowa Administrative Code §263--7.2(1) insofar as the
applications do not include maps idenfif.ving the land to be annexed. See
Iowa Code §368.7(1)(c) which states "It]he application must contain *** a
map of the territory showing its location in relationship to the city." See also
Iowa Administrative Code §263--7.2(1) which states: "Landowner's
Application. Written application(s) for annexation of territory must include:
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Ih]
iii
*** c. A map of the terrkory for which annexation is sought."
Asbury did not provide copies of the landowners' applications or maps
of the land tbr which the applications were made to the Dubuque County
Auditor prior to approval of the applications as required by Iowa
Administrative Code §263-7.2(1)(d). See Iowa Administrative Code
§263-7.2(1)(d) which states "[p]rior to approval of a voluntary annexation
application by the city council, the city shall provide a copy of the
landowner's annexation application and the legal description of the entire
annexation terrkory to the county auditor with a request that the auditor verify
the accuracy and completeness of the legal description and verify current
ownership of the parcels involved." (Emphasis supplied).
Asbury did not serve notice or a copy of the proposed annexation to the
Dubuque County attorney that territory within the road right of way
owned by the county may be annexed as required by Iowa Code §368.5
nor did Asbnry certify compliance therewith as required by Iowa
Administrative Code §263-7.2(2)(f). See Iowa Code §368.5 which states
"[t]erritory within the road right of way owned by a county may be annexed,
but the county attorney of that county must be served with notice of the hearing
and a copy of the proposal." See also Iowa Administrative Code
§263-7.2(2)(f) which requkes that the documentation of Asbury's approval of
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[k]
.the application must include "[a] statement indicating whether state owned
property or county owned right of way has been included in the proposal
pursuant to Iowa Code §368.5, and if so, certification that the city has
complied with the notice requirements of that section." The county attorney
has no authority to waive said notice.
Asbury did not include a statement describing the current and expected
use of the annexation territory, the services which Asbury providesto the
annexation territory or the reasons for the property owners' requests as
required by Iowa Administrative Code §263-7.2(2)(a). See Iowa
Administrative Code §263-7.2(2)(a) which states that the documentation
included with Asbury's annexation application must include a description of
"the current and expected uses of the annexation territory, any services which
the currently provides to the territory, and the reasons for the property owners'
requests."
Asbury did not send written notice to the Board of Supervisors, public
utilities and adjoining landowners by ordinary mail at least fourteen days
prior to city council action on the annexation applications as required by
Iowa Code §368.7(1)(d). See Iowa Code §368.7(1)d) which requires that
Asbury "shall provide written notice at least fourteen business days prior to any
action by the city council regarding the application, including a public hearing,
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by regular mail to the chairperson of the board of supervisors ***, each public
utility ***, and each owner of property that adjoins the territory to be annexed
***." (Emphasis supplied).
2. When two (2) voluntary applications involving common territory are received
within thirty (30) days of each other, "the board shall review the applications and petitions
to determ~e compliance with the requirements of Iowa Code chapter 368 and these roles."
Iowa Administrative Code §263-7.9(1).
3~ If an application does not meet the requirements of Iowa Code chapter 368 or these
roles, the board may dismiss the application or request additional information from the
applicant. Iowa Administrative Code §263-7.9(2).
4. The board must deny any application that is statutorily barred by Iowa Code
§368.17. Iowa. Administrative Code §263-7.7(6).
5. If only one application remains before the before the board following such
dismissal, the board will proceed on that f~ling as if no competing application had been filed.
Iowa Administrative Code §263-7.9(2).
6. Asbury has failed to substantially comply with the requirements of chapter 368 and
the administrative rules of the City Development Board and ks application should be
dismissed.
7. Even if the CDB found substantial compliance with most of the mles and statutory
requirements, there are no conceivable ckcumstances under which Asbury's annexation can
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be approved without creating an island and therefore Asbury's application must be dismissed.
There is no point in wasting time and resources in considering an annexation request that is
statutorily barred.
Wherefore, Dubuque moves that this annexation proceeding be dismissed.
Mulray Smit~-P-ff~60~ 168
Des Moines, IA 50317-4507
(515) 265-6210
(515) 2654584
Email: fr anksmithatty~_.mcle o dus a,net
ATTORNEY FOR DUBUQUE
Original filed.
Copies mailed to:
Mr. Michael H. Smith
Assistant Attom~y General
Room 018, Lucas Building
321 East 12a Street
Des Moines, Iowa 50319
Phone: (515) 281-5263
Facsimile: (515) 281-6072
Thomas Henderson
c/o Whitfield & Eddy P.L.C.
317 Sixth Avenue, Strite 1200
Des Moines, IA 50309
Phone: (515) 288-6041
Fax: (515) 246-1474
PROOF OF SERVICE
Th~ undersigned certifies that me lbregoing hastnmm~t; was served t~oFall par/i~a to the ~bov~ mu~e to ~a~h ot'th~ attoraeys of record ~rein at thor
r~oectiveaddressesdisclosedonthcpte~dingsonthe~g-!] dayof [-Y~Jr'udr¥ .2004.
By: U,S. Mail Fax
4~Hand Delivered ~
__ Overnight Express
Federal Express Other:.
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