Jackson Park lease information
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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.
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Miéhael C. Van Milligen
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Attachment
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gil D. Spence, Leisure Services Manager
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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
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JAMES L. SCHNEIDER
Funeral Director
ALOIS M. HOFFMANNt
MAURICE J. TIERNEYt
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HOFFMANN MORTUARY
1640 Main Street
Dubuque, Iowa 52001
Pbone (563) 582-7221
Fax (563) 582-7222
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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
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James L. Schneider
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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
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The Honorable Mayor & City Cou.11cil of
City of Dubuque, Iowa
City Hall
50 W. 13th Street
Dubuque, IA 52001
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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:
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1/ David L. Hammer
By:
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Angela C. SImon
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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.
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_/'" THE ORDINANCE IS INVALID AS TO THAT PORTION OF THE i
PROPERTY EXPRESSLY DEDICATED TO THE CITY AND THE /'
PUBLIC FOR PARK PURPOSES. /
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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
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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.
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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.
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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.
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