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Ainley Kennels & Fabrication, Inc. et al. v. City of Dubuque Copyright 2014 City of Dubuque Consent Items # 10. ITEM TITLE: Ainley Kennels & Fabrication, Inc. et al. v. City of Dubuque SUMMARY: City Attorney transmitting the Court's ruling regarding the lawsuit brought by 18 manufacturing plaintiffs seeking rebates of natural gas franchise fees. SUGGESTED DISPOSITION: Suggested Disposition: Receive and File ATTACHMENTS: Description Type ❑ Staff Memo Staff Memo ❑ Court Order Supporting Documentation THE CITY OF DUB bE MEMORANDUM Masterpiece on the Mississippi M BARRY LIND CITY ATTORN Y To: Mayo Roy D. Buol and Members of the City Council DATE: July 8, 2015 RE: Ainley Kennels & Fabrication, Inc., et al. v. City of Dubuque Attached is the Court's ruling in this lawsuit which was brought by 18 manufacturing plaintiffs' seeking rebates of natural gas franchise fees dating back to 2009. The total amount of rebates sought is in excess of $400,000. The Court has granted the City's motion for summary judgment, dismissing the case. The gas franchise fee adopted in 2003 provided for a rebate of franchise fees paid by entities exempt under state law for sales tax on natural gas used in manufacturing "processing." None of these plaintiffs requested a rebate until 2013. Many other manufacturers requested and received rebates during the ten year period between 2003 when the franchise fee was enacted, and 2013 because they filed timely, usually annually, rebate requests with the City. In February 2014, the City Council amended the natural gas franchise fee ordinance to require that requests for rebates be filed by June 30 in the fiscal year in which the franchise fee was paid. The amended ordinance also provided that any rebate for any franchise fees paid prior to July 1, 2013 was declared void. Because there were no material facts in dispute in the litigation, both sides filed motions for summary judgment claiming that, based on those undisputed facts, each side believed it was entitled to a judgment as a matter of law, the City asking for dismissal of the case, and the plaintiffs asking for a judgment for the amount of the rebates. Ainley Kennels & Fabrication, Inc., Automotive Enterprises Company d/b/a Automotive Industrial, Dubuque Stamping & Mfg., Inc., Eagle Window & Door Mfg., Inc., Edwards Cast Stone Co., Rite-Hite Corp. d/b/a Frommelt Safety Products, Grove Tools, Inc., Klauer Mfg. Co., Morrison Bros. Co., Rauen, Inc., Rousselot Dubuque Inc., Smart Retract, Inc., F.H. Uelner Precision Tools & Dies, Inc., Union- Hoermann Press, Inc., Welu, Inc. d/b/a Welu Printing Co., Giese Mfg. Company, Inc., Tri-State Industries, Inc., Woodward Communications, Inc. d/b/a Telegraph Herald OFFICE OF THE CITY ATTORNEY DUBUQUE, IOWA SUITE 330, HARBOR VIEW PLACE, 300 MAIN STREET DUBUQUE, IA 52001-6944 TELEPHONE (563)583-4113/FAx (563)583-1040/EMAIL balesq@cityofdubuque.org The City argued that (1) there is no inherent right to a rebate, the City Council authorized the rebate in the fee ordinance and the City Council can and did take away the rebate claims with the amended ordinance; (2) the franchise fees paid by the plaintiffs were used for city services which benefited the plaintiffs and it would be inequitable to require city taxpayers to refund those fees now; and (3) the plaintiffs waited too long and without any legitimate excuse for such late requests for the rebates. The plaintiffs argued that the ordinance amendment taking away their claims for rebates was not legal and denying them rebates is a violation of their Due Process and Equal Protection rights by treating them differently from manufacturers who received rebates (the manufacturers who made timely rebate requests). The effect of the Court's ruling is to uphold the amended ordinance which provided that any rebate of any franchise fees which was not paid prior to July 1, 2013 is declared void. BAL:tIs Attachment cc: Michael C. Van Milligen, City Manager Maureen A. Quann, Assistant City Attorney Ken TeKippe, Finance Director Jenny Larson, Budget Director Ivan Webber, Esq. F:\USERS\tsteckle\Lindahl\Franchise Fee Rebate Requests From Tax Exempt Entitites\Ainley Kennels et al.vs.City\MayorCouncil_CaseUpdate_CourtRuling_070815.doc 2 E-FILED 2015 JUL 01 5:42 PM DUBUQUE-CLERK OF DISTRICT COURT IN THE IOWA DISTRICT COURT,IN AND FOR DUBUQUE COUNTY AINLEY KENNELS &FABRICATION, INC.et.al., Case 01311 EQCV101386 Plaintiff, ORDER Vs. CITY OF DUBUQUE Defendant. This matter comes before the Court upon the Defendant's motion for summary judgment. All parties appeared through counsel. This action is based on the City of Dubuque's billing of utilities. The billing statement had a franchise fee on the pricing of services for utilities the city provided for the city residents. The Plaintiffs are all businesses. It was their understanding that the billing statements would have an exemption for these services. The billing did not. Plaintiffs argue they are entitled to reimbursement for the franchise fees charged. Motions for summary judgment are authorized by IRCP 1.981. The summary judgment procedure is intended to permit a party to pierce allegations of fact in the pleadings and to obtain relief by summary judgment where the facts set forth in detail in affidavits, depositions, interrogatories and admissions on file at the time of hearing show that there are no genuine issues of fact to be tried. Drainage District No. 119, Clay County v. Incorporated City of Spencer, 268 N.W.2d 493 (Iowa 1978). The purpose of a Motion for Summary Judgment is to avoid a useless trial which results in unnecessary delay and expense. David v. Comito,204 N.W.2d 607 (Iowa 1973). Pursuant to Iowa Rule of Civil Procedure 1.981, such a motion is authorized for this purpose. The burden is on the moving party for summary judgment to show the absence of any genuine issue of material fact. Knapp v. Simmons, 345 N.W.2d 118 (Iowa 1984). The Court is to examine the record in the light most favorable to the party opposing the Motion for Summary Judgment to determine whether the movant has met its burden of proof. Sandbulte v.Farm Bureau Mutual Insurance Company, 343 N.W.2d 457(Iowa 1984). Every legitimate inference that reasonably can be deduced from evidence should be afforded the non-moving parry. (IRCP 1.981) A fact question is generated if reasonable minds can differ on how factual issues should be resolved. Knapp v. Simmons, 345 N.W.2d 118 (Iowa 1984). The court's function at the summary judgment stage is not to weigh evidence or establish the truth of the matter,but to determine whether there are genuine issues for trial. See Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1376-77(8"'Cir. 1996). E-FILED 2015 JUL 01 5:42 PM DUBUQUE-CLERK OF DISTRICT COURT ANALYSIS The actions of the City Manager are non-discretionary functions concerning the return of the franchise fees collected by the City of the utility bills. The Plaintiffs are exempt entities under the city ordinance. There is nothing to determine beyond that assessment. The City must return the funds collected as it was done so in violation of the rights of the exempt entities which are specifically spelled out in the ordinance. The City cannot retroactively impose a rule or ordinance that prohibits the return of the fees by limitation of time. This is an improper taking. The City argues that the money has already been used and the source of the funds necessary for the return of the collected fees is not available. This is not a defense, nor is it logical. The City cannot collect the fees against these entities. It bears not on the decision for its return, that the City has already spent the fees. In saying this, however,the Court is cognizant of the fact that the City has a duty and responsibility to act reasonably with the residents' money. The City acts as a steward of the residents' taxes. The money collected by the City is there for use of the welfare, maintenance and advancement of the lives of us who chose to live here. The Court has found in Zager v. City of Dubuque, 789 N.W.2d 634 (Iowa 20 10)that the retroactive application of a corrective ordinance is proper. The reason it is proper relates to the nature of the City's obligation as a steward of the residents' taxes. To put the city in a position to have to now conjure revenues to replace what has already been taken and spent, places a very heavy burden on the City and its financial management. The end run places the financial burden directly into the laps of the City's residents. For this reason, "Provided that the retroactive application of a statute is supported by a legitimate legislative purpose furthered by a rational means,judgments about the wisdom of such legislation remain within the exclusive province of the legislative and executive branches Carlton, 512 U.S. at 30-31, 114 S.Ct. at 2022, 129 L.Ed.2d at 28 (quoting Pension Benefit Guar. Corp., 467 U.S. at 729, 104 S.Ct.at 2718, 81 L.Ed.2d at 611); accord {"pageset°:"S12*656 Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 19, 96 S.Ct. 2882, 2894, 49 L.Ed.2d 752, 768-69 (1976) "Our function is not that of a super-legislature which weighs the wisdom of legislation; we look only to whether the means chosen by the State are rational and reasonably necessary to the accomplishment of the State's purpose."Zaber at 656 citing State v. Miner, 331 N.W.2d at 689(citation omitted).For the present, our legislature has reserved to itself the power to determine whether to ratify unauthorized local taxes on a case-by-case basis. We must defer to a constitutional exercise of that judgment. Zaber at 655. ORDER IT IS THEREFORE ORDERED that the motion for summary judgment is hereby GRANTED. There exists no material issue of fact to generate a question for a trial. The City is E-FILED 2015 JUL 01 5:42 PM DUBUQUE-CLERK OF DISTRICT COURT not under an obligation to return the franchise fees collected herein by the City against these Plaintiffs as a result of the ordinance passed by the City prohibiting the return of the same for a five year take-back period from the date of collection. Cross-motion for summary judgment is DENIED. E-FILED 2015 JUL 01 5:42 PM DUBUQUE-CLERK OF DISTRICT COURT State of Iowa Courts Type: OTHER ORDER Case Number Case Title EQCV101386 E AINLEY KENNELS ET AL V CITY OF DUBUQUE So Ordered Monica Ackley,District Court Judge, First Judicial District of Iowa Electronically signed on 2015-07-01 17:42:50 page 4 of 4