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Jackson Park lease information D~~~E ~<k~ MEMORANDUM June 1, 2004 TO: The Honorable Mayor and City Council Members FROM: Michael C. Van Milligen, City Manager SUBJECT: Lease Agreement with Hoffmann Schneider Funeral Home Jim Schneider of Hoffmann Schneider Funeral Home has stated that he does not wish to proceed with the lease agreement with the City. Leisure Services Manager Gil Spence recommends City Council approval to terminate the lease with Hoffmann Schneider Funeral Home for a section of Jackson Park. I concur with the recommendation and respectfully request Mayor and City Council approval. fìJ4 ~ AIL- Miéhael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Gil D. Spence, Leisure Services Manager ?:~ 5>~ è6 "'" a '¿'- c.. c-:. 4: ¡ 1'" CITY OF DUBUQUE, IOWA MEMORANDUM June 1, 2004 TO: Michael C. Van Milligen, City Manager FROM' GU D. Speoœ. Le;,"", SeN;œ, Ma",er SUBJECT: Lease Agreement with Hoffmann Schneider Funeral Home INTRODUCTION The purpose of this memorandum is to request that the City Council terminate the lease agreement with Hoffmann Schneider Funeral Home for a section of Jackson Park. DISCUSSION Since the City Council approved the lease, pending review of the site plan by the Historic Preservation Advisory Commission, several people have expressed opposition to the lease. Two individuals sought opinions from attorneys on the legality of the lease. Both attorneys expressed the opinion that since the land was platted for public use, it could not be sold or leased for private use. I sent a copy of the letter the City Council received from attorneys David L. Hammer and Angela C. Simon challenging the lease to Jim Schneider and asked him if he wanted to proceed with the lease. Mr. Schneider called me on May 25, 2004 to say he did not want to proceed. I said I would ask the City Council to terminate the lease. ACTION STEP The action requested is that the City Council terminate the lease agreement with Hoffmann Schneider Funeral Home for a section of Jackson Park. GDS:et attachment ~ JAMES L. SCHNEIDER Funeral Director ALOIS M. HOFFMANNt MAURICE J. TIERNEYt ~L c{l~ HOFFMANN MORTUARY 1640 Main Street Dubuque, Iowa 52001 Pbone (563) 582-7221 Fax (563) 582-7222 ~ May 28, 2004 Gil D. Spence Leisure Services Department 2200 Bunker Hill Road Dubuque, Iowa 52001-3010 Dear Gil: For the record, please terminate my request to lease part of the Jackson Park property. Regards ~þ~ James L. Schneider JLS/ef ~ <"w, run,kut=d and <"W, ('a" ~ HAMMER, SIMON & JENSEN ATTORNEYS AT LAW DAVID L. HAMMER ANGELA C. SJMON+ SCOTT J. NELSON PHHlP F. JENSEN PAUL T.JENSEN 770 MAIN ST., STEELE CENTRE DUBUQUE, IOWA 52001-6820 TELEPHONE: 563-583-4010 FAX: 563-583-3402 ALL ATTORNEYS UCENSED IN IOWA AND ILLINOIS + ALSO LICENSED IN WISCONSIN May 19,2004 a .',"- The Honorable Mayor & City Cou.11cil of City of Dubuque, Iowa City Hall 50 W. 13th Street Dubuque, IA 52001 :1': ;c,- -<: co [', _'0' r-o, ~> 8' c ~~ Re: Jackson Park Dear Mr. Mayor & Council Members: We write this letter as attorneys representing a client, as private citizens, but on behalf of the City of Dubuque, as well. We understand that the City of Dubuque, through your body, has leased or plans to lease, to the Hoffinan-Schneider Funeral Home certain portions of Jackson Park for parking for the funeral home. Please be advised that no one in the City of Dubuque has the authority to either lease or sell any portion of Jackson Park for private purpose. There are two reasons why this carmot be accomplished by any person, or by any City body. First, Jackson Park was platted and granted to the City of Dubuque by the 24th Congress of the United States as Chapter CCLXII in 1836. Certain portions of the City were designated for public use, were called the "Public Squares," and were reserved for public use. They were, by the language of this Act of Congress to "remain forever for public use..." No action of a City Council contrary to an Act of the Congress of the United States is valid. If the City does not have a copy of that Statute, we shall be happy to fun1Îsh it. Historical City documents also establish that prior City bodies were aware of, and honored, this requirement. The second reason is that property expressly dedicated to the City and the public for public purposes carmot be diverted to non-public use. The authority for this statement has already been submitted to the City in the case of Sutton & Banworth v. Dubuque City Council & Royal Oaks Development, with respect to a different park, but the principle remains the same. We enclose a copy of page 4 through 6 herewith, since apparently the Council has not received a copy of that legal authority. However, please note that Jackson Park, like Washington Park, has the additional and special protection of the Federal government of the United States. 303 NORTH BENCH, P.O. BOX 270, GALENA, ILLINOIS 61036-lS0'. TELEPHONE, Sl5-777-1101, FAx. Sl5-777-'24' The Honorable Mayor & City Council of May 19, 2004 Page 2 Parks are a public trust, not subject to the whims of any particular Council to encroach upon or diminish. The parks belong to the people. The arresting irony here is that it is the City Administration and the City Council as the guardians of public property who should be most zealously defending the rights of the citizens as to their interests in parks and other public property. Unfortunately, that does not appear to be the case. While the City is still involved in litigation involving allowing encroachments by private parties on Eagle Point Park, the same City Administration now seeks encroachment on Jackson Park for yet another private interest We would have assumed that there was no reason to advise elected and appointed City officials that their very first duty is the protection of public property which the City holds in trust for the generations who have been, the generations who are, and the generations who are to come. It is sad that those bodies so charged with this august responsibility should have to be reminded of it by their citizens. Dubuque citizens have a right to expect and demand the exercise of responsible stewardship, accomplished in accord with the law. We respectfully request that you reconsider this action. Thank you. Very truly yours, HAMMER, SIMON & JENSEN By: ~. 1/ David L. Hammer By: 4,-Le~ Angela C. SImon DLHIkk Enclosure cc: Barry Lindahl, City Attorney Gil Spence, Park & Recreation's Commission Telegraph Herald Historic Preservation Commission 303 NORTH BENCH, P.O. BOX 270, GALENA, ILLINOIS 61036"809. TELEPHONE, 815-777-¡¡OJ, F~ 815-777-9241 ... also an officer and servant. It is an old saying that a man carmot serve two masters. * * *. A temptation would be offered *** to disregard his public duty, and yield to the temptation of personal interest. It is this that the law gnards against. It is this sort of a condition that the law is intended to avoid. * * * The law intends that these public officers should, like Caesar's wife, be above suspicion and temptation." At page 397, the Court goes on, " Some men are big enough and strong enöugh to waive all personal considerations and discharge fairly and impartially a public duty, but all men are not so constituted. The law would remove ITom public officers these temptations to which, owing to the weakness of human nature, men do sometimes yield." Whether or not the Mayor was serving his duty as Mayor of Dubuque, or his realty business in which he is financially interested, the temptation of a commission ITom a $20 million dollar condominium project is one few men would be strong enough to resist. Unlike Caesar's wife, the Mayor did not remove himself ITom this temptation, which he could have done by abstaining, and letting the Ordinance pass or fail, based on its merits. But he yielded to it by calling an irregular meeting only personally notifying the "yes" voters of that meeting, voting "yes" to allow the project to go forward and then actively soliciting Mr. Spiegel for the listing. Because without his vote the Ordinance would have failed, his conduct falls squarely within the cases holding his vote and the Ordinance invalid. ~~"').-ø---"" ""-;;~;'~~I;;~~';;~-------- "...---' '\ _/'" THE ORDINANCE IS INVALID AS TO THAT PORTION OF THE i PROPERTY EXPRESSLY DEDICATED TO THE CITY AND THE /' PUBLIC FOR PARK PURPOSES. / -'-"'--'- ._...~,.-~..'- Lot 1 of Mineral Lot 3ò3Ã"W¡¡s"lìedícaled by a priV"m~er to the City of Dubuque and to the public for use as a park. A portion of that property now known as "Tollbridge Place" is contained within Lot 1 of Mineral Lot 305A. But according to Motion Exhibit 21, "Tollbridge Place" (the property for which Mr. Spiegel's corporation paid $500,000)was conveyed by the City of Dubuque for $13,500 in 1985, with title delivered to one of Royal Oak's predecessors in interest in the form of a Quit Claim Deed. AUTHORITY AND ARGUMENT Dedication is the setting aside of land for a public use. Sons of Union Veterans of Civil War, Dept. of Iowa v. Griswold American Legion Post 508, 641 N.W.2d 729 (Iowa 2002). There is a distinction between property dedicated by a private owner to public use and that which is publicly owned and designated by public authority for public use; and the use to which the former may be put is more restricted than that for which the latter may be employed. Abolt v. City of Fort Madison, 108 N.W.2d 263 (Iowa 1961). Property devoted to public use, such as parks, carmot be alienated or diverted without Legislative authority. Carson v. State, 38 N.W.2d 168 (Iowa) 1949. Even with proper Page 4 of 16 Legislative authority, the property may only be put to some other public use. ¡d. (In Carson k1.., there was a general Statute authorizing the City to divert publicly owned land from one public use to another public use, and so diversion of park property by the municipality to the state to be used for a state university was lawful.) Since municipalities are creatures of the Legislature, its control over them is almost unlimited. Carson v. State, 38 N.W.2d 168 (Iowa 1949). Powers conferred upon municipalities are to be strictly construed. Gritton v. City of Des Moines, 73 N.W.2d 813( Iowa 1955). In Gritton, k1.. the Plaintiff sought to enjoin the City of Des Moines from conveying a tract ofland owned by it to a nonprofit corporation as a site for a building the corporation plarmed to erect. The basic contention asserted by the Plaintiff was that the City was without the statutory power to make the conveyance. The Court said that the purpose for which the City had acquired the land was not shown, except that it was for a "Park Art Memorial" The City was paid $5,000 for the tract ofland, which at the time of the action was worth 32 times the monetary consideration received for it. The City alleged that the conveyance was authorized by Code sections 368.39 and 368.40, but the Court said those statutes did not confer upon the City the power it attempted to exercise, because what the City proposed to do was deed to a private corporation not under its control, to be used for nomnunicipal purposes, property the City held in its governmental capacity. Even though the Court acknowledged that the City and its residents might benefit from the erection of the 'proposed building, the City was not authorized to make such a conveyance. The Court viewed the conveyance, even though to a charitable organization, as void and an unauthorized diversion of municipal property to a private corporation. Warren v. The Mayor of Lyons City, 22 Iowa 351 (Iowa 1867) held that a portion of ground dedicated by the original proprietors of a town or city for the purpose of a "public square" could not by the city authorities, be sold or converted to uses foreign to that for which it was dedicated. It was held not within the Legislative power to authorize a disposal of the subject granted or its diversion to uses foreign to the dedications. (In Warren, k1.., a law authorizing land which had been dedicated by its owner for the purpose of a public square to be used for a different purpose, impaired the obligation of a contract, and was void. The Court said that if the right was vested in the city for a particular purpose, the Legislature could not vest it for another; that, when the dedicator declared his purpose by the plat, the land could not be sold or used for another and different one; that while the Legislature might give the control and management of these squares and parks to the municipal corporations, it could not authorize their sale and use for a purpose foreign to the object of the dedication.) In our case, in 1985, the City unlawfully and unsuccessfully conveyed title to the northern-most portion of that property now described as "Tollbridge Place." It had been conveyed to the City for the specific public purpose of use as a park, and is contained within that property commonly known as Eagle Point Park. Because the attempted transfer to Royal Oak's predecessor in interest is invalid, so are the subsequent purported transfers of that portion of the property. Page 5 of 16 The Ordinance is invalid as to that portion of the property expressly dedicated to the City and the public for park purposes. PROPOSITION III CE IS INY ALID BECAUSE IT VIOLATES THE CITY OF CIPAL CODE. The City Council s ot approve a PUD applicapion plan unless and until the Council determines that the conceptual velopment plan confoffiÍs to each of several standards, among which are included that the conce al development plâh will not violate any provision or requirement of the Zoning Ordinanc due considerati6n is given to preserving natural site amenities and minimizing the disturb e to the na1.¡:Jral environment, that existing trees are preserved wherever possible and that due onsideI;átion is given to the natural topography, and major grade change is to be avoided. Sectio 3-5,5, Dubuque Municipal Code. All off-street parking required by Dub e's zoning ordinance, applicable to "all zoning districts of the City, "..."shall be located on ~lje s e lot as the use for which such spaces are required," with certain exceptions not appljcable t this case. Sec. 4-2, Dubuque Municipal Code. .' In this case, the majority of the r~quired off-stree arking supplied for and as part ofthe Eagle Villa condominium project is 10Ç'ated on "Kretz Plac, "which is not only a separate lot ITom "Tollbridge Place" on which the/condominiums are to e built, but on a lot not even zoned PUD as "Tollbridge Place" is, but zqbed CR. t AUTHORITY AND ARGUME The Royal Oaks PUD ap~cation upon which the challenged rdinance is based did not and still does not conform to th Zoning Ordinance. Aside ITom the fa that existing trees have been destroyed, there has bee a major grade change and the "natural en 'ronment" and "natural site amenities" of the bluffh e been smashed, blasted and blown apart, . rockslides still occurring. The Plan (origin site plan and the final approved plan) provide parking directly contrary to specific Municipal Code provisions. A zoning ordinance may be e blished as invalid if it is unreasonable, arbitrary, capricious or discriminatory. Shriver v. of Okoboji, 567 N.W.2d 397 (Iowa 1997). It is respectfully submitted that a PUD application d the Ordinance that flows ITom it which are on their face illegal are unenforceable and in alid as unreasonable, arbitrary and capricious. Page 6 of 16