IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY

Transcription

1 IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY JOSEPH DAVID ZWACK ) Petitioner ) Case No CVCV ) v. ) ) CITY OF DUBUQUE, IOWA ) Defendant ) ) TRIAL BRIEF COMES NOW Petitioner, Joseph David Zwack, and provides the following Trial Brief in this matter: BACKGROUND: 1) The Petitioner in this action filed an appeal of the decision of the City of Dubuque Historic Preservation Commission (hereinafter the Commission ) from the meeting held on July 16, 2015 concerning Petitioner s request for addition of balconies at property located at 100 Main St., Dubuque, Iowa, and of subsequent action taken by the Dubuque City Council (hereinafter the Council ) from the meeting held on September 8, 2015, 2015 concerning the same matter. The Commission decision was appealed to the Council pursuant to Section of the Ordinance by filing a timely notice of appeal with the planning services department of the Defendant. The Council s action was appealed to this Court pursuant to Iowa Code Section , which states that [i]f not satisfied by the decision of the governing body, the party may appeal within sixty days of the governing body's decision to the district court for the county in which the designated area is located. There is admittedly very little guidance in the law on this issue, and the factual circumstances of this case are of importance in determining this appeal.

2 On or about July 16, 2015 Adam Johnson, on behalf of owner Joseph Zwack, submitted to the Dubuque County Historic Preservation Commission (hereinafter the Commission ) an application for a Certificate of Appropriateness to install an exterior door, balconies, roof addition and enclose window openings on the Structure. The project sought approval to move forward with planned renovations to repurpose 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 purposes. The City of Dubuque s Code of Ordinances contains regulations for historic districts (hereinafter the Ordinance ). The Ordinance states that applications for renovations within a designated historic district shall be submitted to the Commission. The Ordinance further 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 complies with the standards specified in this chapter and conforms to the purpose and intent of this chapter; and 2. That creating, changing, destroying or affecting the exterior architectural features of the structure, improvement or site upon which the work is to be done will not have a substantial adverse effect on the aesthetic, historic or architectural significance and value of either the property itself or of the neighboring improvements 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, sketches, photographs or other exhibits, as it deems reasonably necessary for consideration of the application. (Ord , ; amd. Ord , ).

3 At its July 16, 2015 meeting, the Commission, by a vote of three to two, denied the portion of the application seeking to install balconies on the primary (front) façade of the Structure. In doing so, the Commission acted in a patently arbitrary and capricious manner. I. The Commission acted in a patently arbitrary and capricious manner in denying the application by making its decision without regard to the underlying facts and circumstances. A decision is arbitrary or capricious when it is made without regard to the law or underlying facts. Riley v. Boxa, 542 N.W.2d at 523 (Citing, Soo Line R.R. v. Iowa Dep t of Transp., 521 N.W.2d 685, (Iowa 1994)). A decision is unreasonable if it is against reason and evidence as to which there is not room for difference of opinion among reasonable minds. Id. (Quoting, Stephenson v. Furnas Elec. Co., 552 N.W.2d 828, 831 (Iowa 1994)) The Commission acted in an arbitrary and capricious manner in denying the application by making its decision without regard to the underlying facts and circumstances presented in the application and by Zwack in person during the meeting. This includes, but is not limited to, Zwack s presentation of similar design features of cable and balcony type structure on other Main Street primary facades in the same district that were not original to those buildings. The property at issue was never designed to be a stand-alone building in the Old Main District, but the building to the north burned down in the late 1990s. Architecturally and aesthetically the building was meant to be the south end cap on a block of buildings. With the destruction and removal of one building due to fire, and the future demolition of a second building being planned, the property is now isolated at the end of the lock without attached neighboring buildings on the block to provide it with the obvious visual purpose that is enjoyed by the rest of the Lower Main Street District. Since the building now stands alone, and is a

4 narrow width building, that lends itself to installing balconies on the front. The only response to this from a Commission member was a statement the building never had balconies and was never designed to have balconies. (quoting Chairperson McDonell, Minutes Historic Preservation Commission, July 16, 2015, page 5). The response did not address the fact that the building, being stand-alone, is no longer in the same situation as when it was originally designed. In response to one Commission member s observation that she believed the design of the balconies to be in keeping with the building and noting that photographs provided by the property owner clearly showed similar balconies, the Commission chair reiterated one of the examples provided by the property owner are of balconies on the primary façade of a building (Minutes, page 8). However, at least two of the photographs did show the primary façade of buildings, one being the Oky Doky store on West 1 st Street, and another in the Millwork District. In response to Discovery in this matter, the City provided applications regarding other balcony additions in the District that were not original to the façade of the building. (See Exhibit A) II. The Commission acted in a patently arbitrary and capricious manner by not providing evidence or reasons that the application would defeat the objectives in the commission guidelines. At the Commission meeting, the applicant stated his belief that the proposed alterations were consistent with the Architectural Guidelines established by the City of Dubuque given the unique nature of the property, its location in the district, its past use of the building, the change in use of the building, and other similar properties on Main Street and historic districts, including the Millwork District.

5 At one point during the Commission meeting, a city staff member advised Commission members that the Architectural standards are guidelines, and are not themselves Code or law. He stated that guidelines are recommendations that allow for design considerations on a case-bycase basis (quoting Staff Member Johnson, Minutes, page 6). However, the arguments put forth by the members opposing the balconies showed a desire to treat adherence to the Guidelines as rigid, rather than allowing for consideration of the factors that make this a unique case. III. The Council violated Section of the Ordinance by considering matter not in the record of the action before the Commission. 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 C. Prior to the Council meeting at which the appeal was considered, the Commission provided Council members with a letter that was not part of the record of the action before the Commission (hereinafter the Letter marked Exhibit C). The city attorney for Defendant was notified of objection to consideration of the Letter by the Council. Defendant s mayor announced at the meeting that the Council was not to consider the Letter in their deliberations. The statements by both the city attorney and mayor provide ample evidence that the city was aware the letter was not part of the record of the action before the Commission. However, Council members had already received and had the opportunity to read the Letter prior to the start of the meeting. Council members also 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 Commission. The letter included a discussion of the background behind development of the historic preservation guidelines, which was not in the record before the

6 Commission. The letter contained language that a reasonable person could construe was intended as an argument for upholding the Commission s decision. (See, for example, Letter page 2, paragraph 2 ( The Architectural Guidelines promote high quality construction, support economic development, and maintain an active pedestrian-oriented environment. ) See also, Letter page 2, paragraph 3 ( A significant purpose of the Architectural Guidelines is to provide a basis for making consistent decisions about the treatment of historic resources. )). (See also Exhibit B) By having read the Letter and referring to it at various times during the meeting, the Council violated Section C of the Ordinance. IV. The Commission s refusal to consider the effect of action on Petitioner s business is a violation of public policy. How an administrative action such as the Commission s decision affects a citizen s ability to conduct his or her business should be a matter of vital public interest. During the July 16, 2015 meeting, Commissioner Lawson stated that by preventing the balconies she felt the Commission would substantially be affecting the property owners (sic) business, and asked if that is in their purview. Commission staff member Johnson replied that it is not their purview. He stated that the Commission s purview with regard to design review is strictly design. He further stated that the Commission is not to consider how successful a business is or its contributions. (Minutes, page 7, paragraph 9).

7 This view not only goes against the public policy of the State, but is also in conflict with at least two of the stated purposes of the Commission. The Ordinance provides that the purpose of the commission, among other things, is to 5. Protect and enhance the city s attractions to tourists and visitors and the support and stimulus to business thereby provided; and 6. Strengthen the economy of the city. (Ordinance, Section (B). Another stated purpose of the Commission is to 3. Stabilize and improve property values. Id. The record of the Commission meeting provides substantial evidence that a refusal by the Commission to approve the balcony request would negatively impact Mr. Zwack s property value. Petitioner respectfully requests to be heard on this matter to specifically address all issues on appeal at the time of oral argument on November 28, Petitioner requests the court find that the commission, in denying the application by Petition, has abused its powers; failed to follow the guidelines established by law and ordinance; and that the commission s action was patently arbitrary or capricious. By: /s/susan M. Hess Susan M. Hess AT of HAMMER LAW FIRM, P.L.C. Attorneys for Petitioner 590 Iowa Street Suite 2. Dubuque, IA Telephone: (563) Fax: (866) Susan@hammerlawoffices.com