Carter Rd Det Basin Del Miller
Barry A. Lindahl, Esq.
Corporation Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
balesq@cityofdubuque.org
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March 2, 2004
Mayor Terrance Duggan and
Members of the City Council
City Hall - City Clerk's Office
50 West 13th Street
Dubuque, IA 52001
RE:
Delbert Miller - Carter Road Detention Basin
Dear Mayor and Council Members:
Further negotiations with Delbert Miller for the acquisition of property necessary for the
construction of the Carter Road Detention Basin have not been successful in arriving at
a voluntary agreement for the purchase of the property.
Attached is a resolution authorizing condemnation of the property.
ely,
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Michael Van Milligen, City Manager
Mike Koch, Public Works Director
Gus Psihoyos, Assistant City Engineer
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Preparer: Barry A. Lindahl. Esa, Address: Suite 330. Harbor View Place 300 Main Street
Dubuaue.IA 52001 Telephone: /5631583-4113
RESOLUTION NO. 97-04
AUTHORIZING THE ACQUISITION BY EMINENT DOMAIN OF CERTAIN
REAL PROPERTY OWNED BY DELBERT G. MILLER IN THE CITY OF
DUBUQUE, IOWA
WHEREAS, the City of Dubuque (City) intends to acquire certain real
property owned by Delbert G. Miller (Owner), legally described as follows
(the Property):
Lot 2-2-A-2-2-2-1-1-1-1-1 of Clarence Arlen Place and
Lot 2-1-1-1-1-1-1-1-2-3-1 of Highland Farm Addition, all in the City of
Dubuque, Dubuque County, Iowa
as shown on Exhibit A attached hereto for the purpose of stormwater
storage and the relocation of the sanitary sewer for the Carter Road
Detention Basin;
AND WHEREAS, City has made make a good faith effort to negotiate
with the Owner to purchase the Property before proceeding with
condemnation;
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF
THE CITY OF DUBUQUE, IOWA AS FOLLOWS:
1. The City Manager and the Corporation Counsel are hereby
authorized to commence proceedings for the acquisition of the Property by
eminent domain.
Passed, approved and adopted this 15th day of
March
,2004.
Terrance M. Duggan, Mayor
Attest:
Jeanne F. Schneider, City Clerk
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eanne F. Schneider, City Clerk
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KANE, NORBY & REDDICK, P.C.
ATIORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IA 52001-3069
Brian J. Kane
GaryK. Norby
Les V. Reddick'
D. Flint Drake"
Brad J. Heying
Todd L. Stevenson'
MaryBeth Pfeiler Fleming
Kevin T. Deeny
Of Counsel:
Louis P. Pfeiler
All admitted in Iowa
'Also admitted in Illinois
"Also admitted in Wisconsin
Phone: (563) 582-7980
Facsimile: (563) 582-5312
E-mail: bkane@kanenorbylaw.com
March 10, 2004
The Honorable Mayor & Members
of the Dubuque City Council
City Hall
50 W 13th 8t.
Dubuque, IA 52001-4864
RE: DEL MILLER/CARTER RD. DETENTION BASIN
Dear Mr. Mayor and Members of the Council:
Weare counsel for Mr. Delbert Miller in connection with the above matter and have received
a letter trom Barry A. Lindalll dated March 2, 2004 (copy enclosed) wherein you propose to acquire
Mr. Miller's property as described therein for $65,000.00. That proposal is not acceptable to Mr.
Miller. However, we wish to point out the following in an effort to resolve this matter on a
mutually-agreeable basis short of full condemnation:
1.
Enclosed please find a copy of our letter dated February 24,2004 to the City Manager
(and the enclosures therein). Please note that the recent assessment performed for the
City upon the City's request has set the value of Mr. Miller's property at $109,700.00
forreal estate tax purposes. Further, in this regard, enclosed please find a copy of our
Memorandum dated February 25, 2004 which we previously provided to your
representatives.
2.
Mr. Miller is engaging his own appraiser (your threatened eminent domain
proceedings force him into that position). Frankly, Mr. Miller only wants fair
treatment with regard to his property (taking into account sales of comparable
property to the west and along West 32nd Street).
3.
Neither of the appraisals which you have obtained thus far take into account this
recent assessment. One would think that the City would, of course, carefully assess
the property for the important City purpose of real estate taxation, especially since
the faith of the citizenry of Dubuque in the integrity of the values used in the real
estate tax system should never be an issue. Under Iowa law, property is not to be
assessed at more than its actual value and cannot be assessed inequitably as compared
KANE, NORBY & REDDICK, P.C.
March 10, 2004
Page 2
to other property. Weare simply taking that provision of Iowa case law literally
when reviewing the recent assessment performed for the City. As you know, ITom
a "tax protest" position, great deference is given to the assessment. It seems only fair
that you give similar deference to the assessment in this situation.
Mr. Miller is amenable to negotiating an amicable resolution of this matter, but not for the
payment of $65,000.00 which is insufficient consideration for the conveyance of this significant
parcel of property for the above project. Further, your $65,000.00 "proposal" in Mr. Lindahl's letter
only repeats a prior offer by you and is not a counteroffer to our letter to Mr. Van Milligen dated
Februarj 25,2004. Please provide a counteroffer so we Ca.,l attempt to negotiate on a mutually-
satisfactory resolution hereof. The foregoing is subject to the parties preparing a written Purchase
Agreement including, among other things, the additional provision that the City pick up the cost of
abstracting and other normal Seller's expenses of the closing, except for the Seller's legal fees and
prorated real estate taxes. All the expenses normally incurred by the Seller would be paid for by the
City including, but not limited to, real estate transfer tax, abstracting, and deed preparation.
We look forward to hearing ITom you. In the meantime, please do not hesitate to contact us
directly should you have any questions. Thank you.
Best regards,
BJK/rurk
Enclosures
KANE, NORBY & REDDICK, P.C.
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Barry A. Lindahl, Esq.
Co'poration Counsel
Suite 330, Harbor View Place
300 Main Street
Dubuque, Iowa 52001-6944
(563) 583-4113 office
(563) 583-1040 fax
baJesq@cityofdubuque.org
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March 2, 2004
Brian Kane, Esq.
Kane, Norby & Reddick, P.C.
2100 Asbury Road, Suite 2
Dubuque, IA 52001
RE:
Delbert Miller - Carter Road Detentìon Basìn
Dear Brian:
The City hereby proposes to purchase Delbert Miller's property described as follows:
Lot 2-2-A-2-2-2-1-1-1-1-1 of Clarence Arlen Place and Lot 2-1-1-1-.
1-1-1-1-2-3-1 of Highland Farm Addition, all in the City of Dubuque,
Dubuque County, State of Iowa
for the appraised value of $65,000, subject to a mutually acceptable Purchase
Agreement, approved by the City Council. The City would also consider accepting a gift
from Mr. Miller for the value of the property, if any, in excess of $65,000 if you have an
appraisal which supports such value.
Barry A. Lindahl, Esq.
Corporation Counsel
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Michael Van Milligen, City Manager
Mike Koch, Public Works Director
Gus Psihoyos, Assistant City Engineer
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KANE, NORBY & REDDICK, P.C.
ATIORNEYS
2100 ASBURY ROAD, SUITE 2
DUBUQUE, IA 5200]-3069
Brian 1. Kane
Gary K. Norby
Les V. Reddick'
D. Flint Drake*'
Brad J. Heying
Todd L. Stevenson'
MaryBetb Pfeller Fleming
Kevin T. Deeny
Of Counsel:
Louis P. Pfeiler
All admitted In Iowa
*Also admitted in Illinois
'*Also admitted in Wisconsin
Phone: (563) 582-7980
Facslmi]e: (563) 582-5312
E-mail: bkane@kanenorbylaw.com
February 24, 2004
Mr. Michael C. Van Milligen
City Manager
City Manager's Office
City Hall
50 W 13th St.
Dubuque, IA :52001-4864
Dear Mike:
RE: DEL MILLER/3110 KANE CT./CARTER RD. DETENTION BASIN
We have met with Mr. Del Miller concerning the above matter. Pursuant to your request for
a written proposal ITom him, please consider this letter as that proposal upon the following terms:
2.
1.
In light of the recent assessment performed for the City upon the City's request (see
copy of two enclosed pages), the City has set the value of Mr. Miller's property at
$109,700.00 for real estate tax purposes. Notwithstanding any prior appraisal
obtained by you (which did not take into accoì.Int, among other things, this most
recent assessment performed for you), Mr. Miller believes, and we concur, that it
would only be fair for him to propose that the City pay $l 09,700.00 to acquire his
real estate in connection with the above proj ect, such amount to be paid in full at the
closing; and,
The foregoing is subject to the parties preparing a written Purchase Agreement with
the additional provision that the Cily would pick up t:.l:1e cost of abstracting and other
normal seller's expenses at the closing except for the seller's legal fees and prorated
real estate taxes. All the expenses normally incurred by the seller would be paid for
by the City including, but not limited to, real estate transfer tax, abstracting, and deed
preparation, etc.
We look forward to hearing ITom you with regard to this matter. In the meantime, please do
not hesitate to contact us directly should you have any questions. Thank you.
..
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KANE, NORBY & REDDICK, P.c.
February 24,2004
Page 2
Best regards,
BIDmrk
Enclosure
KANE, NORBY & REDDICK, P.C.
BY~~
Brian J. Kane {
cc: Mr. Del Miller
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Nam~MILLER, DELBERT G
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TO:
FROM:
DATE:
RE:
MEMORANDUM
CITY OF DUBUQUE
KANE, NORBY & REDDICK, P.C.
FEBRUARY 25,2004
DEL MILLER
Under Iowa law, "All property subject to taxation shall be valued at its actual value which
shall be entered opposite each item, and, except as otherwise provided in this section, shall be
assessed at one hundred percent of its actual value, and the value so assessed shall be taken and
considered as the assessed value and taxable value of the property upon which the levy shall be
made." Iowa Code § 441.21(I)(a) (2003). Further under Iowa law, "The actual value of all the
property subject to assessment and taxation shall be the fair and reasonable market value of such
property except as otherwise provided in this section. 'Market value' is defined as the fair and
reasonable exchange in the year in which the property is listed and value between a willing buyer
and a willing seller, neither being under any compulsion to buy or sell and each being familiar with
all the facts relating to the particular property. . .." Id. at (1)(b). Iowa law also provides,
"Notwithstanding any other provision of this section, the actual value of any property shall not
exceed the fair and reasonable market value. . . ." Id. at (l)(g).
Furthermore, Iowa courts have held as follows:
(a)
(b)
(c)
Property cannot be assessed at more than its actual value and cannot be assessed
inequitably as compared to other property. Maxwell v. Shivers, 133 N.W.2d 709,
711 (Iowa 1965).
Under the law ofIowa, where an assessor has made an assessment without ITaud on
his part or conceahnent on the part of the property owner, and no steps have been
taken to review such assessment in the manner provided by statute, through the board
of equalization and the courts, it becomes a finality; and after the taxes have been
levied thereon and paid, the property cannot be reassessed for the same year because
the assessor, through mistake oflaw, undervalued it. People's Sav. Bank v. Lavrnan,
134 F. 635,640-41 (C.C. Iowa 1905).
Unless it is manifest the valuation is grossly excessive and is the result of will and
not judgment, the assessment will be sustained. Chicago and N.W.Rv. & Co. v. Iowa
State Tax Commission, 137 N.W.2d 246,252 (Iowa 1965).
Since the City cannot protest its own assessment, and based on the above statutory language
and case law, it is reasonable to treat the City's assessment of the Miller's property as the fair market
value for that property.