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Annex Asbury City Develop Bd .,: cc :4,p/J ~ -IN THE MATTER OF THE CITY OF ASBURY VOLUNTARY ANNEXATION INCLUDING NON- CONSENTING OWNERS CITY DEVELOPMENT BOARD STATE OF IOWA NO. UA03-60 ASBURY NOTICE OF MEETING TO CONSIDER RESISTANCE TO DUBUQUE'S MOTION TO DISMISS TO: Cities of Asbury, Dubuque, Iowa Department of Transportation, Iowa Attomey General Dallas County Attomey, East Central Intergovernmental Association, Dallas 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 Resistance to Dubuque's 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 ~< ./w-, Æ <:M ~~ Steven R. McCann, Administrator City Development Board ~" Co.) Prepared by: Steve McCann, Administation 515.242.4719 IDEO 200 E Grand Avenue, Des Moines, Iowa 50309 UA03-60 Asbury ,. PROOF OF SERVICE upon: The undersigned hereby certifies that a true copy of the foregoing' instrument was served Ms. Patricia Sunseri Asbury City Clerk -4985 Asbury Road Dubuque, IA 52002-0411 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 Attomey 720 Central Avenue Dubuque, IA 52001' Ms. Kelley Duetmeyer ECIA 3999 Pennsylvånia 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 Customer Relations MCI Communications PO Box 4600 Iowa City, IA 52244 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 Des-Moi es, Iowa on the 11 th Y of February 2004. ~ Prepared by: Steve McCann, Administation 515.242.4719 IDEO 200 E Grand Avenue, Des Moines, Iowa 50309 UA03-60 Asbury 2 02/10/2004 15:56 FAX 515 246 1414 Whitfield & Eddy P. L. C. ~ 002/007 ", BEFORE THE CITY DEVELOPMENT BOARD CDB No. UA 03-60 íN 1HE MATTER OF THE CITY OF ASBURY ANNEXATION lŒSISTANCE TO DUBUQUE'S MOTION TO DISMISS The CITY OF ASBURY resists the City of Dubuque's motion to dismiss its petition for annexation, stating; Argument 1. Asbury's Petition Substantially Còmplied with the Law. Asbury has complied with all required notification provisions set forth in the voluntary annexation statute, and copies of those filings have been submitted to the City Development Board. See Iowa Code § 368.7. Addressing each of the reasons stated in Dubuque's motion for dismissal in twn, Asbmy remains in substantial compliance, l(a): Dubuque argues Asbwy's plan creates an island COlltraJ:yto law. Asbury's plan does not necessarily create an island. This argmnent will be addressed in greater detail below. I (b): Dubuque argues the Dubuque County Board of Supervisors or Township Trustees were not given notice in actordanée with Iowa Code § 368.7(1)(b). There is no subsection (I)(b) to Iowa. Code section 368.7. Iowa Code section 368.7(1) requires that notice of the application shall be mailed to the chairperson of the board of supervisors. This notice was provided to and received by the Dubuque Board of Supervisors pursuant to this code section. 1 (c): Dubuque claims notice was not mailed 14 days before as required. Asbury did comply with the notice requirement. Dubuque does admit the notice was sent thirteen days "before it took 02110/2004 15:56 FAX 515246 1414 Whitfield & Eddy P. L. C. ijj 003/001 action." Notice was received and Asbury is in substantial compliance with the requirements of the rule. I (d): Dubuque claims Asbury did not provide the required notice to property owners. Asbury did provide the required notice by regular mail. 1{e, t; g): Dubuque claims Asbury did not provide a legal description of the territory to be annexed. As the filings before the City Development Board reflect, Asbury did provide the information as was provided by the County Recorder's office, thus substantially complied by providing the necessary legal descriptions of the property. 1 (h): Dubuque claims Asbury did not provide required notice to the County Auditor. Asbury did, however, receive a written waiver of notice fium the County Auditor. This waiver has been submitted to the City Development Board. l(i): pubuque claims Asbury did not provide required notice to the County Attorney. Like the County Auditor, the County Attorney signed a written waiver of notice. This waiver also has been submitted to the City Development Board, 10): Dubuque claims Asbury's petition lacked a statement of services or reasons. Asbury's application is complete and additional details were supplied by supplemental letter to City Development. Detailed descriptions of services and rationale are less necessary where the annexation is vol\DItary in nature. DeS Moines v, Citv Dev. BeL 473 N.W.2d 197,200-201 (Iowa 1991). I (k): Dubuque again claims Asbury failed to complywith notice requirements ofIowa Code scction368. 7. As stated earlier, Asbury has substantially complied with all notice requirements and 2 02/10/2004 15:56 FAX 515 246 1414 Whi tfield & Eddy P. L. C. ~ 004/001 I; has filed proof of its compliance with the City Development Board. Asbury has complied with the requirements for voluntary annexation. Even if Asbury failed to coIDplywith the precise letter of the law, it is in substantial compliance. "[F]ailure to compJywith every word of the annexation statute is not fatal." Gonnanv. CitvDev. Bd., 565 N.W.2d 607, 610 (Iowa 1997); Des Moines. 473 N.W.2d at 200. Substantial compliance is sufficient. 1d. ß.Mbury Must Be Allowed to Amend or Supplement its Filings If Deficient. Even if Asbury's Petition is missing required infimnation, under the law, Asbury must be given notice of the missing infonnatÎon and pennitted to amend its filing. Iowa Administrative Code section 263-7 A provides, "If the request is found to be incomplete, staff shall notify the filing city, identifying the required item(s) omitted and offering the city an opportunity to provide the omitted in founation prior to submission of the request to theboard." Thus, even if Dubuque is correct and Asbury faile9 to provide some of the information required under the law, dismissing the petition is not.. proper remedy. Dismi$al is not required for. technical missteps. See Iowa Code § 368.12 ("The board may dismiss a petition only if it finds that the petition does not meet the requirements of this chapter. . .:) AsbufY can and will provide any necessary infounation to support its application. Ill. Voluntary Annexations are Preferred. AsburY filed a voluntary annexation application before the City Development Board. This voluntary application is the, will of the property-owners who reside in the territory to be annexed. Dubuque has filed a rival application, seeking to annex these same residents involuntarily into the City of Dubuque. . Iowa law on this matter is clear. voluntary annexations are preferred. 3 0211012004 15:56 FAX 515 246 1414 Whitfield & Eddy P. L. C. ~ 005/007 " It is the intent of the general assembly to provide an annexation approval procedure which gives due consideration to the wishes of the residents of territory to be annexed, and to the interests of the residents of all territories affected by an annexation. The general assembly presumes thftt ft voluntary annexation of territory more closely reflects the wishes of the residents of territory to be IIImexed. and, therefore, intends that the annexation approval procedure include a presumption of validity for a voluntary annexation approval. Iowa Code § 368.6 (Emphasis added.); City of Hiawatha v. City Dev. Bd.. 609 N.W,2d 532, 536 (Iowa 2000). Asbury is entitled to the statutory presumption of validity fOf voluntary annexations, and Dubuque has not shown this presumption should be set aside. £\1!; Iowa Code § 386.6; ~ v. CitvDev. Bd.. 565 N.W.2d 607, 609 (TowaI997). Dubuque seeks to compel the same property owners to join its city, rather than the City of Asbury. There is no reason to compel these property owners to join a city against their will. Even granting the remainder of Dubuque's application, there would be no islands, incontinguitics,of irregular boundaries created by permitting the residents of the petitioned-for territory to voluntarily annex themselves to the City of Asbury. IV. Dubnque Cannot Show and Island Will Necessarily Be Created IJJ\der Asbury's plan. Although Dubuque is correct that Iowa law disallows annexations that create islands, Asbury's plan would not necessarily create an island. See Iowa Code § 368.17(7). Dubuque has an annexation petition on file that eliminates any island that would be created by the Asbury petition. The two petitions, however, seek some of the same land. The Dubuque petition also seeks land in the center of Asbury and creates an extremely iITegular boundary between the cities. Asbury would request that the City Development Board exercise its power under state law 4 .0211012004 15:51 FAX 515 246'1414 Whitfield & EddyP.L.C. ~ 006/001 ': to ovem¡Je the motion to dìsmiss and conduct a hearing on both proposals to consider, in part, whether it is in the public interest that the competing petitions be compromìsed and resubmitted. CONCLUSION Dubuque's claìmed errors are spurious. Asbury has substantially complied with the requiremenrs of the law and bas offered proof of its compliance to the City Development Board. Asbury has presented a proper voluntary petition expressìng the will of the residents of the territory to be annexed. Dubuque's rival petition should not force noneonsenting landowners to become residents of the City of Dubuque when ìt is their expressed desire to become Asbury citizens. ill addition, Asbury stands ready at any time to negotiate witb Dubuque to resolve these conflicting annexation petitions, including the creation of a 10 year annexation moratorium agreement under Iowa Code Section 368.4. WHEREFORE, the Cityof Asburyrequests the City Development Board ovem¡Je Dubuque's motion to dismiss and perniit Asbury's voluntary annexation petition full consideration through a public hearing before the City Development Board. WHITFIELD & EDDY, P.L.C. 317 Sixth Avenue, Suite 1200 Des Moines,lA 50309 Telephone: (515) 288-6041 Fn: (515) 246-1474 BY~~ Thomas Henderson PKOOO2295 ATTORNEYS FOR CITY OF ASBURY 5 .02110/2004 15:51 FAX 515 246 1414 ,,' Original Filed. Copies to: Mr. Michael Smith Assistant Attorney Genera! Room 018, Lucas Building 321 E. 12th Street Des Moines, Iowa 50319 Frank Munay Smith FRANK MURRAY SMITH LAW OFFICE 4215 Hubbell Avenue Des Moines, Iowa 50317-4507 Whi tfield & Eddy P. L. C. ~0011001 CERl1FICA1E OF SERVICE The und....lgnod eorllfioslhat tho foregoing Instrument was saMld "pori all partie. 10 Iha above causo or 10 each of rIM! attorneys of ,.cord herein a;J¡¡?!'OOlIve add"'.... di.oIose<t on the ploadlngs on . 2004 By: r:J U. S. Moil ~AX 0 Hanel Dolivere<! ('J OVernight CourIor ::I certiIT' ( Other; Signature; A;.fÁã.-.{;7i:¡L--J:Ið-¡- , 6 " cC .' A/" ~dA'l '2?7f ,..- .., ._- .-. CITY DEVELOPMENT BOARD STATE OF IOWA NO. UAO3-60 ASBURY AND NC04-03 DUBUQUE NOTICE OF MEETING TO CONSIDER VOLUNTARY ANNEXATION WITHIN THE URBANIZED AREA IN THE MATTER OF CITY OF ASBURY VOLUNTARY ANNEXATION WITHIN THE URBANIZED AREA OF THE CITY OF DUBUQUE AND THE CITY OF DUBUQUE VOLUNTARY ANNEXATION INCLUDING SOME LAND WITHOUT THE CONSENT OF THE OWNER 'r -c¡ on CD ø ::.-. Cities of Asbury and Dubuque, Dubuque County Board of Supervisors, Dubuque County Attorney, East Central Intergovernmental Association, Iowa State Attorney General, Iowa Department of Transportation and affected public utilities. TO: You and each of you are hereby notified that the Ci~ Development Board tabled its review of the a~ove captioned matters at its February 12, 2004 meeting- The Board will resume review of these proposals at a telephone conference at 11 :00 a.m., February 26, 2004. At this meeting the Board will determine how to proceed with further consideration of these proposals. You are invited to participate in this meeting and address the Board on this matter. The teleconference will be hosted from the offices of Iowa Department of Economic Development, 200 E Grand Avenue, 1st floor southeast (Tourism) conference room, Des Moines, Iowa.. If you would like to participate in this meeting by telephone, or have any questions regarding this notice, please contact the City Development Board at 515.242.4719. CITY DEVELOPMENT BOARD S ~WI ¡{ ~ ~-- Steven R. McCann, Adminis rator City Development Board Prepared by: Steve McCann 515/242-4719 City Development Board Administrator /200 E Grand Avenue I Des Moines, fA 50309 I " PROOF OF SERVICE The undersigned hereby certifies that a true copy of the foregoing instrument was served - - .-- ... .--" -_. k. upon: Ms. Patricia Sunseri Asbury City Clerk 4985 Asbury Road Dubuque, IA 52002-0411 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 Mr. Frank Smith Frank Murray Smith Law Office 4215 Hubbell Avenue Des Moines, IA 50317 Mr. Thomas Henderson Whitfield & Eddy, P.L.C. 317 - 6th Ave., Ste 1200 Des Moines, IA 50309 Customer Relations MCI Communications PO Box 4600 Iowa City, IA 52244 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 Ms. Jan Schaffer U.S. West 615 3rd Avenue SW Cedar Rapids, IA 52401 Engineering Dept. I MCI 560 2nd Avenue SE Cedar Rapids, IA 52401 Pat Bryant PA173 AT&T CommlPromenade Annex 1200 Peachtree Street NE Atlanta, GA 30309 Maquoketa Valley Rural Electric PO Box 370,109 N Huber Anamosa, IA 52205-0370 Mediacom 3033 Asbury Road Dubuque, IA 52001 Said copy was mailed 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 Des Moines, Iowa on the 18th day of February 2004. Local Delivery Honorable Tom Miller, Iowa Attorney General NCO4-03 Oubuque Prepared by: Sieve McCann 515/242-4719 City Development Board /200 E {Orand Avenue / Oes Moines, iA 50309