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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 D~ ~c!k-~ 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, BAL:tls q cc: Michael Van Milligen, City Manager Mike Koch, Public Works Director Gus Psihoyos, Assistant City Engineer Þ :;.." Attachment :-q ~ w .....J SeNke People Integ'¡ty R~po",ibility Innovation Teamwo,k 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 ~ ')) v;t/Ú/;Z:- a ~J eanne F. Schneider, City Clerk F:IUSERSI 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. B\riæp ): V' vi 8::11\\0 Sf: : \ \ W;j 0 \ 110 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 THECITYOF ~ Q~ ~c!k-~ 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 BAL:tls cc: Michael Van Milligen, City Manager Mike Koch, Public Works Director Gus Psihoyos, Assistant City Engineer 5e",iœ People Integrity R"'poMibility Innovation Teamwmk -' / 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. .. 't 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 U.L;jLDUBI\ 1 rarceJ-IlO-15-376-00l Nam~MILLER, DELBERT G Add;::¡- Addr 116900 MUNTZ COURT C!S!Z4]DUBUOUE TA Location-House] AltIDUBP,- 11-17A-7-l42004 IDeediD '-:orcontL-J Addr#L.,------~rS~~tusA _1- ~ame #1 I Reference #; . 1 Comments , - TIF Dist 152001 f-L__n__ITax Aéct[==_~~~' . -- - -- 1 Hse Suffix~ Street! Buildings Dwellings MTlItHomest I ~L=--:=::= Net Acres! C s r __nn______-_u- Credit Code ,_. Land ~~;~Yrl U II II Class~ , Sub Class! i ~ Gross Acres~._J Number->Buildings I, Units~, Dwellingsl !-- Agland Creditl : Homestead Credit Code, ' Military Family Farm Credit->Applied!Approvecr---, OwnershTp~ Value' Exempt 1 iD~i Exempt 2¡--1 ExemPt3,-~u---i Exempt 4---- E}(~!TlE.t_~__.._n_- :f~~:I~odesl=;2 i(~¡ 2~ '31 41 I ' 2 Loanr-~.__L__- Legal->lILOT 122 3-1-1-1-1-1-1-1-2-3-1 . 4'OFHIGHLAND FARM ISec!Twn!Rni ~ity!Tw DU Date Book Page Add#!Secl 1 Blk!Twn iLot!Rnl ]Contin.UDee_053019l5~ Inn.7D42-3Q'- Dsc->% Use Credit~Credit$1 1 Conti L_....._....--' nn - ---- Extended-Deedjo 1 Contlli....J Mail[(L] Lega110 I H!Mlro¡ Propio ! Last MntI02!O5L£Q.Q.L... This Activity [LJ ACDINLPUTXZ Next->DistIPREV 1 parq - - Next Act [LJOr->Reconii) , Namesii) , Legal!l1 , Milii) , HroW , PropCrc:W , Tlf1ili- Total Value LJlS1:lDUBA ParceLl 0-15-37 6-010 --~__}\.1t:DUBA~J1-1LIi=7 -15~ ~u___2_QQL- Name!MILLER, DELBERT G _._-J£ee~~r CantU Addr#!____~- . Sta!uS!A . Addri [t'Jame #L--=:J --~':.'! erenc~JiL___- Addr L16 900 MUNT~OUR1'.__----~--_.__._L,c_o~":.rl~ s - c/s/z4IDUBUOUE TA~__~__---- _:;;2Q01 . Location~House! I Hse Suffix~ Street! Land Buildings Dwellings Total Va1ue'~---1i.i1-rÜ--Homest ~~;~ ¿J . U II II I LL_-==: ClasslRj, Sub Class! i Gross Acresl Net Acres: Number->Buildings! I, Unitsc::::=J, Dwellings! ! ~ CsrL..--.._~--_._--- Agland Credit! I Homestead Credit Code~ Mili tary, Cr":.c:!i t_s:o~.e '- Family Farm Credit->App1ied/ApproveciO OwnershipU Value I 0":"---- Exempt 1 I~ Exempt 211 Exempt 31! Exempt~ j E~~TI1¡:>t:_~!_- V~~~:ls 96 9~~~ ',! 1 I i I I r--! ~ i ! Mise Codes=> 11 21 3 4 51xx i Bank Code!2 1 Loan! I Lega1->1ILOT.2-2-A-2-2-2-1-1-1 12 -1-1 CLARENCE ARLEN.. ,3!PLACE 41FOREST RESERVE ISee/Twn/Rnl iCity/Tw~i Date Book Page- Add#/seei. I Blk/TW~.!..LOt/Rn! !Contin.LJDeedj 03311975 ! Ll.5JL'l-!.--------- Dsc->% Use! i Credi t%! iCredi t$! I Conti ! i . Extended.Deedio I contlo ! MailULJ Legallo ! H/Mli-.o I Proplo i. Last MntiO2/0sT2Q04- This Activity tîJ ACDINLPUTXZ Next.->DistiDUBA I Pare! - - - ~-~-----~- Next Act L:LjOr->Reconlli! , NamesiiJ ' Legal!ll ' MiliiJ ' HmlJj , PropcrdJ.lj , TIF!1:J . TiE' Dist Tax -Ace-ti ---~~ 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.