Arbor Estates Phase IIi Lift Station
i5U~~E
~~~
MEMORANDUM
February 2, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Arbor Estates Subdivision Phase III Lift Station
I have had lengthy discussions with City Engineer Gus Psihoyos and Corporation
Counsel Barry Lindahl about the acquisition of property for an alternate location for a
sanitary sewer lift station that would serve the Arbor Estates Subdivision Phase III being
developed by John Kivlahan, and other properties.
The City has not yet reached an agreement with Mr. and Mrs. John Gartner for a
voluntary acquisition of the easement needed for this lift station. Unfortunately, the City
does not have time to finalize the easement acquisition with the Gartners without
causing a delay in the ability of Mr. Kivlahan to develop and market the homes being
built on his property.
I do want to thank Mr. and Mrs. Gartner for meetings with City representatives and
allowing the City onto their property to determine the location of the easement to
facilitate the negotiations.
I respectfully recommend that the Mayor and City Council postpone acquiring this
easement to a future date. City staff intends to approve Mr. Kivlahan's moving ahead
with the installation of a lift station on his property as previously approved in the plans
for the subdivision.
fl.A c~AJL
Michael C. Van Milligen
MCVM/ksf
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psi hoyos, City Engineer
D~~@;E
~~~
MEMORANDUM
February 2, 2006
TO:
The Honorable Mayor and City Council Members
FROM:
Michael C. Van Milligen, City Manager
SUBJECT: Arbor Estates Subdivision Phase III Lift Station
I have had lengthy discussions with City Engineer Gus Psihoyos and Corporation
Counsel Barry Lindahl about the acquisition of property for an alternate location for a
sanitary sewer lift station that would serve the Arbor Estates Subdivision Phase III being
developed by John Kivlahan, and other properties.
The City has not yet reached an agreement with Mr. and Mrs. John Gartner for a
voluntary acquisition of the easement needed for this lift station. Unfortunately, the City
does not have time to finalize the easement acquisition with the Gartners without
causing a delay in the ability of Mr. Kivlahan to develop and market the homes being
built on his property.
I do want to thank Mr. and Mrs. Gartner for meetings with City representatives and
allowing the City onto their property to determine the location of the easement to
facilitate the negotiations.
I respectfully recommend that the Mayor and City Council postpone acquiring this
easement to a future date. City staff intends to approve Mr. Kivlahan's moving ahead
with the installation of a lift station on his property as previously approved in the plans
for the subdivision.
fiJ ~(!IJL
Michael C. Van Milligen
MCVM/ksf
cc: Barry Lindahl, Corporation Counsel
Cindy Steinhauser, Assistant City Manager
Gus Psi hoyos, City Engineer
Jan-30-06 10:42am From-
T-3T8 P,OOI/OOT F-300
Il. Ml\nh.Ull....... 1907-1989
franei!l J. O'Cunrwr, 1916-1990
^TTORNEYS^TLAW
lJI,l,-/1I
www.DCrhom4llMrl.~tl
January 30, 2006
To the Mayor and Members of the City Council
City Hall
50 West 13'h Street
Dubuque, IA 52001
RE: Arbor Estates. Phase ill
Proposed Acquisition of Property
For Lift Station
Dear Mayor and Members of the City Council:
Representatioll
In follow up to our January 3, 2006 correspondence, we ate again writing to YOll on behalf of the
Forest Grange Subdivision located in Dubuoue Countv, more particularly described as follows;
Lots 1-22 afForest Grange Subdivision; Lots 1 & 2 afForest Grange Subdivision # 2, and Lots 1-6
afForest Grange Subdivision # 3, all in Sections 9 and 10, Township 89 North, Rauge 2 East ofilie Slh prinIe
Meridian, and located in Dubuque County, Iowa.
Restated and Additional Objections
The Forest Grange Property Owners' Association again objects to the acquisition of any property
within the Association for purposes of installing a Lift Statior> or associated easement. We understand thai
the City has or may make a voluntary offer to purchase an easement from the owners of Lot 19 (the Gannets)
for the purpose ofinstalling a Lift station. Because the location of a Lift Station and access road within the
Forest Grange Subdivision violates the express rules and restrictive covenants that all Forest Grange
Association members have expressly agreed to and relied upon in purchasing their lots, any voluntary
sale/purchase of property within the Association for such an unapproved and unauthorized purpose
constitutes a tortious interference with the contractual expectancies of the Association and all of its
0.,,", C. Curd.. I ...<. zso I d=-....@octh""""'law.'Olll
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JOriN C. O'CONNOJI. CHAD C.l.mTOiIll JAMP 'E. GOODMAN, JR. . ~a 1-. LIWTKEt CliRlSTOPlilHl C. FRY
BKk:JojClI\N T. QuO\NN R1C11AAJ:1 K. WHrrn DAVIN C. OJkTU$S "'t p~ p. .AHtuNo+ft :c....ILT E.lUn-lw
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Jan-10-06 10:42an From-
T-ITS P.006/00T F-IOO
O'CONNOR & THOMAS, P.C.
To the Mayor and Members of the City Council
January 30, 2006
Page 2
memben. By now, all parties are on notice of the Association's objections and the existence of restrictive
covenants that prohibit the kind of development planned within the Association. If such a transaction is
pursued, the Association can and will take whatever legal steps necessary to protect its interests, including
an action for money damages and injunctive relief.
We have also been informed that if the City is unsuccessful in acquiring the property by consent, the
City will consider possible condemnation proceedings. Again, the Association vigorously objects to any
such condemnation and, if necessary, will pursue those objections by way ofinjunctive relief.
There is no adequate factual or legal predicate for exercising the City's eminent domain anthority.
In previous correspondence relating to the City's eminent domain al\thority, the City Attorney has called
your attention to the case of Banks v City of Ames, 369 N.W.2d 451 (Iowa 1985). In that case, and other
well established precedents, the Iowa Supreme Court conf1T1Iled that such eminent domain powers of a
municipality could not be exercised except for "for public purposes which are reasonable and necessary."
Given that the existing Lift Station site has already been determined 10 meet the needs of the Arbor Estates'
subdivision, the proposed acquisition of pro petty within the Association is neither reasonable nor necessary.
To the extent that the City envisions some other, future use for the Lift Station, such as, for example, future
mmexation, the Blmks.' COUll mled that, at a minimum, there must be "a reasonable assurance that the
intended USe will come /0 pass." Il1. at 455. At present, there is nothing to suggest, let alone a reasonable
assurance, that any future annexation necessitating the proposed Lift Station on Association property will
come to pass. As far as we are aware, there are no notices, plans, or other lawn!1 action underway to extend
any City services into the County as to justify the exercise oftbe City's eminent domain authority at this
point in time. Even if annexation were proposed, it is by no means reasonable to assume it will take place.
Lastly, it should be noted that the Banks' COUll denied the City of Ames' motion for summary judgment,
Tuling that the issue of ''reasonable assurance" is not a rubber-stamp process, but rather a burden of proof
the municipality must overcome. The COUll therefore allowed the objecting property owners in that case
to proceed to court with their injunction action.
Request of Council
It is respectfully requested that the City Council immediately terminate and vote down any further efforts
to voluntmily or involuntarily acquire the Ganners' or any other property willlin the Forest Grange Property
Owners Association for purposes of the Lift Station and associated easement. The Forest Grange Property
Owners Association respectfully requests the City Council follow the previously approved resolutions of
the City Council on September 19 in approving the final plat with the Lift Station located on~ property.
Jan-IO-06 10:4Zam From-
T-178 P.007/007 F-IOO
O'CONNOR & mOMAS, P.C.
To tbe Mayor and Members of the City Council
JanuatY 30, 2006
Page 3
Very truly yours,
O'CONNOR & mOMAS. P.C.
~..~
Davin C. Curtiss
DCC/sk
cc; City Manager
Barry Lindahl, City Corporation Counsel
Jan-30-06 10:41a. Fr..-
T-3T8 P.OOI/OOT F-300
E. M,,,,h.lI Thom.., 1907-1989
O'CONNOR
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THOMAS,pc
'Franci"J. Q'Connor.1916-1990
XnOIlN.I!YS AT l-AW
or.!4,fd
WWUI.OC'flaomtulmu.com
January 30.2006
To the Mayor and Members of the City Council
City Hall
SO West 13'" Street
Dubllqlle, IA 52001
RE: Arbor Estates, Phase ill
Proposed Acquisition of Property
For Lift Station
Dear Mayor and Members of the City Council:
Representation
In follow up to our January 3,2006 correspondence, we are again writing to you on behalf of Lime
Rock Springs Co., Rosemary Gantz and James Gantz, who are the owners of unsold lots contained within
the Forest Grange Subdivision located in Dubuoue CounlY. more particularly described as follows:
Lots 1-22 afforest Grange Subdivision; LOIS 1 & 2 ofForest Grange Sl\bdivision # 2, and Lots 1-6
afForest Grange Subdivision # 3, all in Sections 9 and 10, Township 89 North, Range 2 East ofthe 5'" prime
Meridian, and located in Dubuque County, Iowa,
Restated and Additional Objections
The owners of the unsold lots within the Forest Grange Property Owners' Association again object
to the acquisition of any property within the Associalion for purposes of installing a Lift Station or
associated easement. We understand that the City has or may make a voluntary offer to purchase an
easement from the owners of Lot 19 (the GartI1eTs) for the purpose of installing a Lift station. Because the
location of a Lift Station and access road within the Forest Grange Subdivision violates the express rules
and restrictive covenants that all Forest Grange Association members have expressly agreed to and relied
upon in purchasing their lots, any voluntary sale/purchase of property within the Association for such an
DIlVIn C. Curti.. I ."" 250 I d""""-,@o,,,,",nwlaw.com
PLlh\.i'!.ljl! 'B"tkllt1Q I 700 Loewlt s~..u~, S\li~ ZOO I P.O. Box 599 I D\lbl.lqu~, lnwn 5Z004.o5~9 I PhQ(W !63..s:S:7.!i4CO I Fa"" S63,s,S6.18t$1
JOH'" C. O'CONNOK CH,.,O C. lfITCH'" JAMI!:i E. GOODMAN, JR.. 1Io KiRRlli L.l.IBD1'KIIt CHNiTOPHER C. FRY
'Bf,~DAN T. QUAl'll'l RJCl-W.b K. Wl1lTTY D^VIN C. 0.."'1155 "t PmR. 0, A.RuNO"'tT EMIl-Y E.lun"~
A.JOHN Alw.a ti ST!~C. K!\uMI'Il"'t PAUI..J. SIO'IVAATH t J~HUA P. WElDP-l"HN THo..tASS. CowNII,OPOOUNSEL
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; C,n'jicd in CWil rritd~ by N.cional &.r. 01 Tritd A""'=ry
Jan-IO-06 10:41am Fr..-
T-ITS P.00I/007 F-IOO
O'CONNOR & THOMAS, P.C.
To the Mayor and Members of the City Council
January 30, 2006
Page 2
unapproved and unauthorized plUpose constitutes a tortious interference with the contractual expectancies
of all Association members. By oow, all parties are on notice of the lot owners' objectiollS and the existence
of restrictive covenants that prohibit the kind of development planned within the Association. If such a
transaction is pursued, the OWllers of the unsold lots can and will take whatever legal steps necessary to
protect its interests, including an action for money damages and injunctive relief.
We have also been informed that if the City is unsuccessful in acquiring the property by consent, the
City will COllBider possible condemnation proceedings. Again, the Association vigorously objects to any
s~lch condemnation and, if necessary, will pUlsue those objections by way ofinjlUlctive relief.
There: is no adequate factual or legal predicate for exercising the City's eminent domain authority,
In previous correSpondClJCe relating to the City's eminent donlaiu authority, the City Attorney has called
your attention to the case of Banks v. City of Ames, 369 N.W.2d 451 (Iowa 1985). In that case, and other
well established precedents, the Iowa Supreme Court confinned that such eminent domain powers of a
municipality could not be exercised except for "for public purpose!! which are reasonable and nece!!sary."
Given that the existing Lift Station site has already been determined to meet the needs of the Arbor Estates'
subdivision, the proposed acquisition of property within the Association is neither reasonable nor necessary.
To the extent that the City envisions some other, future llse for the Lift Station, such as, for example, future
annexation, the ~' court ruled that, at a minimum, there must be "a reasonable assurance that the
intettded use will come to pass." I!h at 455. At present, there is nothing to suggest, let alone a reasonable
assurance, that any future annexation necessitating the proposed Lift Station on Association property will
come to pass. As far as we are aware, there are no notices, plans, or other lawful action underway to extend
any City services into the County as to justify the exercise of the City's eminent domain authority at this
point in time. Bven if annexation were proposed, it is by no means reasonable to assume it will take place.
Lastly, it should be noted that the Banks' court denied the City of Ames' motion for swnmary judgment,
ruling that the issue of "reason able assurance" is not a rubber-stamp process, but rather a burden of proof
the municipality must overcome. The Court therefore allowed the objecting property owners in that case
to proceed to coun with their injwlction action.
In our previous letter, we referenced the detriment to the OWllers of unsold lots if the City acquired
property within the Forest Grange Association for purposes of a Lift Station and easement. Given the
present unCo:::ltain state of affairs, the pendency of the City's present pt.oposal certainly has an impact on the
course and substance of any negotiations concerning the unsold lots with prospective purchasers. Because
the issue affects the unsold lots within the Association directly, it is a matter that in fairness must be raised
with the prospective purchasers. Once raised, the topic understandably causes concern, dampens the
marketability of the property and ultimately negatively affects the price a willing buyer would pay for the
property. This is the current enviroIlltlent faced by the unsold lot owners and exposes the municipality to
a claim of tonious interference with prospective contractual advantage.
Jan-30-06 10:41am FrOlll"
r-3TS P.004/00T F-300
O'CONNOR & THOMAS, P.C.
To the Mayor and Members of the City Council
January 30, 2006
Page 3
Request of Council
It is respectfll1ly requested that the City Council immediately terminate and vote down any funher efforts
to voluntarily or involuntarily acquire the Ganners' or any other property within the FOrest Grange Property
Owners Association for purposes oftbe Lift Station and associated easement. The owners of the unsold lots
within Forest Grange Property Owners Association respectfully requests the City Council follow the:
previously approved re:sol\ltions of the City Council on September 19 in approving the ftnal plat with the
Lift Station located on Jd!y property.
Very truly yours.
O'CONNOR & THOMAS. P.C.
~C.C^--
Oavin C. Curtiss
OCClsk
cc: City Manager
Barry Lindahl. City Corporation Counsel