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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~; .,"~ 2 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- -2- [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: -3- 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 -4- [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, -5- 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 -6- 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:. -7-