Suit by Joe Zwack t
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
JOE ZWACK )
Plaintiff ) Case No.
V. ) rM
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CITY OF DUBUQUE, IOWA ) ! 0
Defendant ) reµ
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ORIGINAL NOTICE
TO THE, ABOVE-NAMED Defendant:
You are notified that a Petition has been filed in the Office of the Clerk of this Court,
naming you as Defendant in this action. A copy of the Petition (and any documents filed with
it) is attached to this Notice. The attorney for the Plaintiff is Susan M. Hess, whose address is
Hammer, Simon & Jensen, P.C. 775 Sinsinawa Ave., East Dubuque, IL 61025. The attorney's
phone number is 815-747-6999; facsimile number 815-747-2952.
You must serve a motion or answer within twenty (20) days after service of this Original
Notice upon you, and within a reasonable time thereafter, file your motion or answer with the
Clerk of Court for Dubuque County, at the County Courthouse in Dubuque, Iowa. If you do not,
judgment by default may be rendered against you for the relief demanded in the Petition.
If you require the assistance of auxiliary aids or services to participate in Court because
of a disability, immediately call your district ADA coordinator at(563) 589-4448. (If you are
hearing impaired, call Relay Iowa TTY at 1-800-735-2942).
(SEAL)
Clerk of Court
Dubuque County Courthouse
720 Central Ave
Dubuque, Iowa 52004
IMPORTANT:
YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR
INTERESTS.
STATE OF IOWA JUDICIARY Case No. CVCV103753
County Dubuque
Case Title ZWACK V CITY OF DUBUQUE
THIS CASE HAS BEEN FILED IN A COUNTY THAT USES ELECTRONIC FILING.
Therefore,unless the attached Petition and Original Notice contains a hearing date for your appearance,or unless you obtain an
exemption from the court,you must file your Appearance and Answer electronically.
You must register through the Iowa Judicial Branch website at http://www.iowacourts.state.ia.us/Efile and obtain a log in and
password for the purposes of filing and viewing documents on your case and of receiving service and notices from the court.
FOR GENERAL RULES AND INFORMATION ON ELECTRONIC FILING,REFER TO THE IOWA COURT RULES CHAPTER
16 PERTAINING TO THE USE OF THE ELECTRONIC DOCUMENT MANAGEMENT SYSTEM:
http://www.iowacourts.state,ia.us/Efile
FOR COURT RULES ON PROTECTION OF PERSONAL PRIVACY IN COURT FILINGS,REFER TO DIVISION vl OF IOWA
COURT RULES CHAPTER 16:http://www.iowacourts.state.Ia.us/EfIa
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Scheduled Hearing:
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If you require the assistance of auxiliary aids or services to participate in court because of a disability,immediately call your district
ADA coordinator at (319)833-3332 . (If you are hearing impaired,call Relay Iowa TTY at 1-800-735-2942.)
Date Issued 11/09/2015 09:59:10 AM
r.
District Clerk of Dubuque County
/s/ Ana Unger
E-FILED 2015 NOV 06 4:23 PM DUBUQUE -CLERK OF DISTRICT COURT
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IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
JOE ZWACK )
Plaintiff ) Case No.
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V. )
CITY OF DUBUQUE, IOWA }
Defendant ) PETITION AND JURY DEMAND
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Pi-ai7rtiff�tl�ougll lris�ttt�rrrey,state.
PARTIES AND JURISDICTION
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1, Plaintiff, Joe Zwack (hereinafter"Zwack") is a resident of Dubuque County, !!
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Iowa.
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2. Defendant, City of Dubuque, is an Iowa Municipal Corporation located in
Dubuque County, Iowa..
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3, This action regards an area of historical significance located within Dubuque
County,Iowa..
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4. As this action involves an appeal of an action by Defendant regarding an area of
- historical-sigaifiew-ice,-jurisdiction-is specifically--given.-to-this-C-olu-t by Iowa Code Section
303.34,which states that "[ilf not satisfied by the decision of the governing body, the party may
appeal within sixty clays of the governing body's decision to the district court for the county in
which the designated area is located."
BACKGROUND FACTS
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5, The City of Dubuque adopted a Code of Ordinances that contains regulations for
historic districts(hereinafter the"Ordinance"). The Ordinance establishes a historic preservation
commission,
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6, The City of Dubuque has adopted architectural guidelines for historic properties.
The guidelines are merely a document for guidance and improvement of properties within the h
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downtown and the historic of the community.
7. The Ordinance provides that the Commission will issue a Certificate of
Appropriateness if, after conducting a review of the application, it finds: 1. That the property
owner or the property owner's representative has established that the proposed work or activity
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compl-ies-with tire-standards-spccifi-p,d-in this-eh�pter-anr-confon�rs-to-thy-purper e �l intent o
this chapter; and 2. That creating, changing, destroying or affecting the exterior architectural
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features of the structure, improvement or site upon which the work is to be done will not have a
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substantial adverse effect on the aesthetic,historic or architectural significance and value of
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either the property itself or of the neighboring improverxnents in a district. 3. In reviewing the
proposed work or activity, the commission may confer with the applicant or the applicant's
authorized representative. The commission may require submission of such additional drawings, r
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sketches,photographs or other exhibits, as it deems reasonably necessary for consideration of the
application. (Ord, 52-09, 10-19-2009; amd. Ord. 40-15, 6-1-2015)
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8. -Zwacic owns a building located at 100 Main Street;Dubuque, Iowa(hereinafter -
the "Structure"). The building is located in the historic district.
9. :'here is nothing in the Ordinance or architectural guidelines that prohibit
balconies on historic properties.
COMMISSION ACTION
10. On or about July 16, 2015 a representative of Zwack submitted to the Dubuque
County Historic Preservation Commission(hereinafter the "Commission") an application for a is
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Certificate of Appropriateness to install an exterior door, balconies, roof addition and enclose
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E-FILED 2015 NOV 06 4:23 PM DUBUQUE -CLERK OF DISTRICT COURT
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window openings on the Structure.. The prgject sought approval to move forward with planned
renovations to reptupose and expand the building use from a single floor restaurant into
additional restaurant space and adaptive reuse of the upper floors of the building for residential
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purposes.
11. The Commission, by a vote of three to two, denied the portion of the application
seeking to install balconies on the primary (front) £agade of the Structure,
--1�. Tire-Connrni,ssioi2 acted-in anrarb.itn�ary-and-capricious rnan�ren•��g-t
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application by malting its decision without regard to the underlying facts and circumstances
presented in the application and by Zwacit in person during the meeting. This includes, but is
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not limited to, Zwaclt's presentation of the unique shape of the building, adaptive reuse of the
upper floors of the building, and similar design features of cable and balcony type structure on B
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other Main Street primary facades in the same district that were not original to those buildings. �
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13. The Commission acted in an arbitrary and capricious manner by denying the
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installation of balconies without providing evidence that the application would defeat the
objectives in the commission guidelines..
CITY COUNCIL ACTION
W. The Commission decision was appealed to the Dubuque City Council (hereinafter
the"Council")pursuant to Section 16-10-10 of the Ordinance by filing a timely notice of appeal p
with the planning services department of the Defendant.
15. The Ordinance provides that the Council shall consider only the record of the
action before the Commission, and that no new matter may be considered. Section 1610-10 C. ilk
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16. Prior to the Council meeting at which the appeal was considered,the Historic
.Preservation Commission Chairperson provided Council members with a letter that was not part �
of the record of the action before the Commission(hereinafter the "Letter"). j
17. The letter was the on the top of the Council Packet and contained new information
that was not presented at the hearing before the Commission.
18. The city attorney for Defendant was notified of objection to consideration of the
L-ettet brthe-Council. a
19. Defendant's mayor annow ced at the meeting that the Council was not to consider
the Letter in their deliberations.
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20. Council members had already received and had the opportunity to read the Letter w
prior to the start of the meeting,
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21. Council members referred to provisions of the Letter at various times during the
meeting, despite the fact that the Letter was not part of the record of the action before the
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Coinmission. i
22. The Council voted 7-0 to deny Zwack's appeal
-- - 23: - By having read-the-Letter and referring to it at various times-duringthe-meeting.- - - --
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the Council violated Section 16-1.0-10 C of the Ordinance,
WHEREFORE, Plaintiff Joe Zwack respectfully requests the Court enter judgment in
favor of Zwacic and against the City of Dubuque as follows:
1. bind that the City of Dubuque acted illegally, unreasonably, arbitrarily,capriciously,
and/or in excess of its authority in denying Zwack's certificate of appropriateness.
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2. Declare Zwack's proposed balconies appropriate or enter an order commanding the
City of Dubuque,through either its City Council or Commission,to issue a certificate
of appropriateness.
3. Enjoin the City of Dubuque from enforcing the Ordinance and/or the Commission's
decision denying the certificate of appropriateness and declare the balconies are
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proper and further order that the City of Dubuque, through either its City Council or
COMn!assign,issue-the-e-ertrficate as Zw�cc).c��t 1. i
4. Require, in the alternative, that the City of Dubuque reconsider and approve Zwack's
certificate of appropriateness,
5. For the costs of this action, attorneys' fees, and for any other relief the Court deems
j usf.
Respectfully submitted
JOE ZWACK,Plaintiff
By:
Susw,i M. Hess AT0008785
of
HAMMER, SIMON&JENSEN, PC
775 Sinsinawa.Ave.
-- -. - - East Dubuque IL 61025--
Telephone:
Telephone: 815-747-6999
Fax: 815-747-2952
Email: susan@hsjlegal.com
B.y: - -
Philip F, Jen ATO 00 888
of
HAMMER, SIMO &JENSEN, PC
775 Sinsinawa Ave.
East Dubuque,IL 61025
Telephone: 815-747-6999
Fax: 815-747-2952.
Email: phil@hsj legal.coin
ATTORNEYS FOR PLAINTIFF
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• E-FILED 2015 NOV 06 4:23 PM DUBUQUE-CLERK OF DIST CT COURT ,
JOE Z ACK, ain ' f
STATE OF IOWA )
ss:
COUNTY OF DUBUQUE )
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1, Joe Zwack, being first duly sworn on oath, depose and state that I am the Petitioner
making the foregoing Petition for Judicial Review; that I have read the same and know the
contents thereof;and that the statements and allegations therein made are true and correct as I
verily believe
Subscribed and sworn to before me this L-e day of SNI �Y 14�e,(- , 201 5.
aa, JAMM,90LOFF
Can�n,issian Wumbev7511®5 N tar Public in and for the State of Iowa
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