Bowling & Beyond Lease 03 07 07
BA.L,E
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A R R Y I N D A H L S Q
CA
I T Y T T O R N E Y
M
E M O
T:
Mayor Roy D. Buol and
O
Members of the City Council
D:
March 7, 2007
ATE
R:
Bowling and Beyond Dubuque, Inc. Lease Extensions
E
Following the March 5, 2007 meeting when the City Council received and filed the
notice from Bowling and Beyond Dubuque, Inc. to exercise the options to extend the
two leases for an additional term of fifty (50) years, I did some additional research,
primarily to determine whether the 1958 leases had been properly approved by the
Dock Commission. Based on that research, I do not have anything to report to you
which would indicate we would be successful in challenging the leases. You may,
however, be interested in some of the historical background I came up with.
The ordinance creating the Department of Public Docks was adopted by the City
Council on November 15, 1926. The ordinance provided that “the powers and duties of
the Dock Board shall be such as are prescribed by Chapter 303 of the Code of Iowa,
1924, and all acts and laws that may be passed amendatory or supplementary thereto.”
The Department of Public Docks was to be administered by the Dock Board.
I checked the 1924 Iowa Code to see what authority state law provided for the Dock
Board. Iowa Code (1924) Section 5902 prescribed the powers and duties of the Dock
Board. The statute granted the board:
. . . . exclusive charge and control of the wharf property belonging to the
municipality including belt railway located in whole or in part therein, all the
wharves, piers, quay walls, bulkheads, and structures thereon and waters
adjacent thereto, and all the slips, basins, docks, water fronts, the
structures thereon, and the appurtenances, easements, uses, reversions,
and rights belonging thereto, which are now owned or possessed by the
municipality, or to which the municipality is or may become entitled, or
which the municipality may acquire under the provisions hereof or
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T(563)583-4113/F(563)583-1040/balesq@cityofdubuque.org
ELEPHONE AX EMAIL
otherwise. The board shall have the exclusive charge and control of the
building, rebuilding, alteration, repairing, operation, and leasing of said
property and every part thereof, and of the cleaning, grading, paving,
sewering, dredging, and deepening necessary in and about the same.
(Emphasis added)
Section 5902 also vested the Board:
. . . . with jurisdiction and authority over that part of the streets and alleys
and public grounds of the municipality which abut upon or intersect its
navigable waters, lying between the harbor line and the first intersecting
street measuring backward from high-water mark, to the extent only that
may be necessary or requisite in carrying out the powers vested in it by
this chapter . . . .
The 1954 Iowa Code, which was in effect at the time of the adoption of the leases in
1958, continued that same language granting authority to the Dock Commission. The
1954 Code, however, includes the following additional provision in Section 384.3,
defining the powers and duties of the Dock Commission:
Leases of such property may be made for such purposes, including
industrial and manufacturing purposes, upon such terms and conditions,
and for such period of time as, in the exclusive judgment of the dock
board, shall be for the best interests of the city or town in the furtherance
of the general plan adopted by said board. (Emphasis added)
Curiously, Iowa Code (1954) Section 368.35, like the current Iowa Code requirement,
required a municipal corporation which leased property to publish a notice of the terms
of the proposed lease and to hold a public hearing on the proposed lease. I can find no
publication or public hearing requirement for the Dock Board in the 1954 Iowa Code.
City Clerk Jeanne Schneider advises me that she has no record of any public hearing
on these 1958 leases. Apparently there was no notice or public hearing requirement for
the Dock Board.
From what I have been able to find, it appears that the leases were approved in the
manner required by the Iowa Code and Code of Ordinances in effect at that time.
cc: Michael Van Milligen, City Manager
Cindy Steinhauser, Assistant City Manager
Teri Goodmann, Assistant City Manager