RESIDENTIAL AND AGRICULTURAL ADVISORY … · in the iowa district court in and for dubuque county residential and agricultural advisory committee, l.l.c., an iowa limited liability

IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY

RESIDENTIAL AND AGRICULTURAL

ADVISORY COMMITTEE, L.L.C., an Iowa

Limited Liability Company, MATT

MESCHER, ALLAN R. DEMMER,

CATHERINE DEMMER, WAYNE

AMESKAMP, SHARON AMESKAMP,

VERNON BOGE, DONALD BOGE, MARY

ANN RUBLY, JOHN R. RUBLY, DELORES

THIER, LARRY THIER, GARY BURKLE,

CINDY BURKLE, WAYNE VORWALD,

LINDA VORWALD, JEFF PAPE, GERALD

WOLF, JOANNE WOLF, LORRAINE M.

BURKLE and BERNARD R. BURKLE,

Petitioners,

vs.

DYERSVILLE CITY COUNCIL, MAYOR

JAMES A. HEAVENS, MIKE ENGLISH,

MARK BREITBACH, ROBERT PLATZ,

MOLLY EVERS and DAN WILLENBORG,

Respondents.

01311 CVCV 101023

01311 CVCV 057723

ORDER

This matter came before the Court for trial commencing on February 16, 2015. Present was Attorney Susan Hess for the Petitioners and Attorneys Jenny Weiss and Douglas Henry for the Respondents. Trial lasted just over six days, concluding in the morning on February 24, 2015. Field of Dreams was a 1989 movie filmed largely at the Don Lansing farm in rural Dyersville (Dubuque County), Iowa. The movie starred Kevin Costner as an Iowa farmer who turned some of his cornfield into a baseball diamond. The Lansings kept the field (and their now famous white farmhouse) intact for visitors to come see. Thousands of tourists visited each year, but the numbers have generally been slowly declining. In 2010, Lansing listed his farm for sale. Eventually, Mike and Denise Stillman purchased the property (including the house and a total of 193 acres) with the intent of creating a large baseball/softball complex with as many as 24 fields and other features. The Stillmans planned to keep the white house and the original baseball diamond intact as an attraction for the people who came for tournaments. The complex, to be called All-Star Ballpark Heaven, would be created on the Lansing farmland right next to the house and the original field. That sale was contingent upon certain things, such as the rezoning of the property for commercial use.

E-FILED 2015 MAY 21 3:05 PM DUBUQUE - CLERK OF DISTRICT COURT

Residential and Agricultural Advisory Committee, LLC v. Dyersville City Council CVCV 057723; CVCV 101023 Page 2 of 25

The agenda for the 11-21-11 Dyersville City Council meeting listed an action item as “Authorize City Administrator to Sign IIW Proposal for Professional Services for Field of Dreams Utilities Extension Feasibility Study 2011.” [Exhibit 58] The City Council, the Mayor (James Heavens), and the City Administrator (Michael “Mick” Michels) all discussed that item at some length. The City would be paying approximately $9,625 to hire an independent engineering firm, IIW, to prepare a utilities extension feasibility study to determine the cost and the logistics or getting water and sewer services to the Field of Dreams site. That action item was discussed for a total of 19 minutes. Mick Michel referred to the “pending sale” of the property. City Council member Molly Evers said she “just found out about this” on November 10, 2011. Jacque Rahe with the Dyersville Economic Development Corporation said, “Kind of the whole purpose of a lot of this is so that we can go to different state officials to secure the funding for this, so we have to know what type of numbers we’re talking about in both return on investment and in the actual cost of this. So the whole goal is to not, you know, ever have this as a taxpayer burden, but to be able to secure funding in other matters as much as we possibly can.” She went on to discuss a meeting with the governor in the middle of December. The motion to approve the study passed 5-0 (with City Council members Mike English, Mark Breitbach, Molly Evers, Dan Willenborg, and Robert Platz). In December 2011, the developers (Mike and Denise Stillman) organized, and presumably paid for, a bus trip to Des Moines to meet with state officials about financing issues related to the development of All-Star Ballpark Heaven, the planned baseball/softball complex at the Field of Dreams site. Mayor Heavens, along with Council members Robert Platz and Daniel Willenborg, went along on the bus trip and joined the group for dinner, which was again presumably funded by the Stillmans. Planning and Zoning Commission member Roger Gibbs also went along on the bus trip. The purpose of the trip was to begin lobbying state officials for financial assistance with the project. Sometime around January or February 2012, an “Economic and Fiscal Impact Study” report was prepared by an entity called the Strategic Economics Group from Des Moines. The report was 54 pages. It detailed the proposed All-Star Ballpark Heaven, general information about the Dubuque County area, the economic impact such a complex would have on the area, and other general information about the project. Specifically, the report projected 1,400 new jobs by its eighth year of operation. It projected $34.1 million in payrolls and $102 million in gross goods and services for the State of Iowa. It projected significant increases in local and state tax revenues, affecting things such as school funding. At the City Council meeting on February 20, 2012, at least six of the Petitioners appeared personally and spoke against the proposed project. Wayne Ameskamp handed some written materials to the Council members and spoke primarily about flooding and water runoff. Matt Mescher said that “eastward expansion (for the City of Dyersville) was never on the radar.” He was concerned that the interests of neighboring property owners were being ignored. He mentioned traffic concerns and that Dyersville has one of the most dangerous intersections in the state. He said the Stillmans’ business model would work anywhere, not just at the actual Field of Dreams site. Lastly, he said, “My neighbors do not want ball fields in the middle of their corn-fields.” Wayne Vorwald also proposed moving the project over to the Dyersville business park.



He expressed concerns about intermixing urban activity and farming activity, particularly the increasing use of aerial spraying by farmers. He also expressed concern about giving “millions of tax dollars” to the project. Jeff Pape discussed concerns with manure spreading, aerial spraying, and water runoff into the Hewitt Creek Watershed. Larry Thier said the population at the Cooperstown baseball complex in upstate New York has actually declined since 1999. Several other people spoke against the project, and several people spoke in favor of it. At the City Council meeting on April 2, 2012, Gary Sejkora, an engineer with IIW, spoke about his Conceptual Water & Sewer Evaluation report, a 55-page report that detailed several different options to provide water and sewer services to the Field of Dreams area. Generally speaking, the cost to run water to the site would be approximately $1.1 million, and the cost for sewer service would be approximately $2.9 million. Council members Dan Willenborg and Molly Evers asked questions which demonstrated they had read the report prior to the hearing. Discussion was held for almost an hour. The Council voted 5-0 to receive and file the report. The City Council met again on May 7, 2012. Molly Evers said she had received a letter from a man in New Zealand regarding the Field of Dreams and his warnings about how such a project would affect the community. Molly asked where the project was at that time. City Administrator Michel said he was preparing the Development Agreement, which he would then send to the Economic Development Committee. Molly asked when people from the community would be permitted to come speak at a public hearing. She expressed her concern about how this project could affect the community. She said the project was more than just an issue of money. She said she’s been receiving correspondence and phone calls from community members. Dan Willenborg said he has also talked with some community members, and he told them “we don’t know which way we’re going with this.” Molly said she has told people that they need to start speaking up. Robert Platz said he “would like to know what our citizens themselves think about it.” At the May 21, 2012, City Council meeting, agenda item #10 was described as “Presentation by Joe Scherrman in support of All-Star Ballpark Heaven.” Scherrman operates a business known as Scherrman Implement and Appliance in or near Dyersville. He spoke in favor of preserving the original baseball field at the movie site, and he opined that the best way to preserve the field was to build extra fields at the location. He said he has visited Cooperstown, which has “done a good job keeping their community small and successful.” At that meeting, Molly Evers again asked when a public hearing could be set so the public could come and talk about the proposal. She was told to talk to the mayor, who was absent that night. Lastly, Wayne Ameskamp spoke to the council. He asked if there are enough kids to support 24 baseball diamonds. He asked what happens to the ground if the project fails. He asked about his ability to continue hunting on his own land. He expressed concerns about flooding, water runoff, and traffic. He said he’d like to see the project put to a public vote “to see what percentage of Dyersville residents are in favor of this project.” At the June 4, 2012, City Council meeting, Resolution 31-12 was to fix a date to consider the application for voluntary annexation by the Lansings and several other property owners who were seeking to voluntarily annex their property into the City of Dyersville. City Administrator



Michel said they were still awaiting one signature from a property owner, and he asked that the matter be tabled. All Council members voted to table the issue. On June 11, 2012, the City Council held a special meeting. The mayor and all Council members were present. Various people got up and spoke. Dale Boge, who lives within two miles of the Field of Dreams on a century farm, called for a referendum. He said he opposed the project, and he generally opposed any change. He offered to put up some of his own money to help hire a lawyer to fight the project. Jacque Rahe, the Dyersville Economic Development Director spoke next. She mentioned a “Save Our Town” letter that was placed on cars over the weekend, and she said some of the information in the letter was incorrect. Barb Penney, a local resident, spoke next. She said she has been to Cooperstown 7-8 times. She is upset with some of the incorrect or inaccurate information about Cooperstown in the “Save Our Town” letter. She said she was not yet supporting or opposed to the Field of Dreams project, but she would like to see a public vote. Deb Tegeler, a local resident, spoke next. She also was not yet supporting or opposed to the project. She expressed concerns about traffic. Jerry Wolfe, a local resident, spoke against the project and requested a public vote. He expressed concerns about traffic, security, noise, trash, flooding, and cost. He also requested a public vote. Joe Ertl, a local resident and former State Representative, spoke next. He also asked for a public vote. Barb Watkinson, a local resident, spoke next. She has also been to Cooperstown 2-3 times, and she disagreed with some of the information in the “Save Our Town” letter. She expressed concern about flooding. Debbie Moser asked for a public vote. Jim Wilhelm said he was against the project, and he felt that all of the Council members had already made up their minds to vote for the project, with the exception of Molly Evers. The Council next considered Resolution 31-12 to set a date to consider the voluntary annexation request. The proposed date was July 2, 2012. Matt Mescher got up and spoke about the annexation briefly. The Council voted unanimously to set the date for July 2, 2012, to consider the voluntary annexation request. On June 18, 2012, the Council met to consider Resolution 35-12 to approve the Memorandum of Understanding. The meeting and discussion lasted approximately 70 minutes. Attorney Marc Casey, the City Attorney for Dyersville, was asked to explain the Memorandum of Understanding. He explained that it is a document that merely states the intention of the parties. “This is simply so both parties have some sense that they’re headed in the same direction and that there’s no road blocks that somebody may throw up. If the Stillmans, if they were to find out tonight that the Council’s not even in favor of this, then obviously they’re going to say ‘we’re not going to invest any more time or effort in this.’ But if the Council’s saying yes, we want to look at these things, we will consider these things, that’s what this sets out. The important thing to remember is that this vote is simply to say we’re going to keep talking with you people, we’re going to negotiate with you people, but we’re still going to take a vote on annexation, we’re still going to take a vote on rezoning, we’re still going to take a vote on approving a Development Agreement. And if any of those items, when the time comes for them to be voted upon, if they’re not approved by the Council, then it’s done. This Memorandum of Understanding does not commit the City to anything other than to continue its process and to work with these people and see if agreements can be reached on the various items that need to be put together to make this a whole project.” The Council members, the mayor, Attorney Casey,



and City Administrator Michel then continued to discuss issues such as tax increment financing, payment of sewer and water hook-ups, and payment of attorney fees. Various citizens and concerned residents stood up and spoke on June 18, 2012. Some voiced their support for the project. Others voiced their objection. Denise Stillman spoke about the possibility of erecting a dome over one of the fields to allow for play year-round. She said she had communicated with two local colleges about their interest in having a place for their baseball teams to train during the winter. She also talked about building dormitories on the property for the players and coaches to stay during tournaments. At the end of the meeting, the Council voted 5-0 to approve Resolution 35-12 (approving the Memorandum of Understanding). The language in the Memorandum of Understanding says, “The City will put forth its best effort” to annex the property, to rezone the property, and to add the property to the Urban Renewal Area for purposes of tax increment financing. On July 2, 2012, the City Council met for approximately 83 minutes regarding the issue of the voluntary annexation of property owned by Donald L. Lansing, Rebecca L. Lansing, Gerald Deutmeyer and Alice M. Deutmeyer, John E. Rahe and Nicole Rahe, Keith G. Rahe and Jacque K. Rahe, and Dorothy Meyer. (Most, but not all, of that time was spent discussing the annexation issue.) The mayor and all five Council members were present. A camera from KCRG Channel 9 news was present, presumably because the issue was newsworthy and contentious. Denise Stillman spoke first very briefly. She introduced Ron Kittle, a former professional baseball player, who voiced his support for baseball projects like the proposed All- Star Ballpark Heaven. City Administrator Michel said the total proposed property to be voluntarily annexed is approximately 500 acres. The mayor said the Council had received one written communication from Matt Mescher. Mescher was present at the meeting, and he spoke about his concerns. He expressed concern about how much funding the City of Dyersville and the State of Iowa were providing to the proposed project. He said the taxpayers are funding 57% of the total cost of the project. He also said there is a growing division in the community over the project, and the Council is “turning on one of their own for doing what she was asked and providing information to the rest of the public.” He didn’t want to argue whether the project will have a positive economic impact on the community, but he said money shouldn’t be the sole deciding factor. Other things, such as noise, pollution, etc., should be considered. Wayne Ameskamp spoke. He said he has spoken with four of the Council members about his concerns. He voiced his opposition to the annexation. Jack Mescher spoke next, and he introduced Attorney Susan Hess. She said the citizens of Dyersville request a vote on the issue. She offered the Council a petition signed by certain citizens. She said her client is the group of people who have signed the petition. She said her clients have retained her to make sure the statute is properly followed and notices are properly given. Attorney Marc Casey said the application for voluntary annexation must be considered by the Council, not by any sort of public vote. He said Iowa Code §368.7 contains the procedure for voluntary annexation. Jack Mescher, son of Matt Mescher, spoke against the annexation. He said the City doesn’t have the necessary hydraulic studies or traffic studies or pollution studies. Jacque Rahe, Dyersville Economic Development Executor Director, spoke in support of the annexation. She said the project would result in 24 full-time, year-round jobs. Joe Ertl spoke again and again requested a public vote on the annexation issue. Finally, there was a motion to approve Resolution 37-12. The motion passed



4-1, with Molly Evers voting no. Then the Council voted on Resolution 38-12 to refer to the Planning and Zoning Commission the rezoning of certain property from A-1 to C-2. City Administrator Michel explained the proposal of rezoning for conditional use “for the preservation of the existing white farmhouse with wrap-around porch overlooking the Field of Dreams, the preservation of the existing Field of Dreams, and the creation and construction of All-Star Ballpark having a complex featuring 24 baseball and softball fields targeted for competition and training for youth 8 to 14 and incidental uses thereof.” The Council voted 5-0 to approve Resolution 38-12 and send the matter to the Planning and Zoning Commission. At the July 2, 2012, meeting, Eric Schmechel spoke for the Dubuque Soil and Water Conservation District. He spoke about the stormwater and watershed management practices, and specifically about the impact of the proposed baseball complex on the watershed. The Council members asked him questions about general water issues and how/when he might become involved with the actual All-Star Ballpark project. He said the project, if done correctly, can actually improve the location’s issues with respect to water runoff. On Sunday July 8, 2012, the Planning and Zoning Commission hosted an informational session with Denise Stillman. It was advertised as “a 20-minute presentation followed by a question and answer period. Overview provided by Denise Stillman, the lead developer.” (See Exhibit 39) The minutes from the meeting indicate that the meeting was called to order by Denise Stillman at 6:30 PM, and that the meeting was adjourned at 7:37 PM. (See Exhibit 9) Present for that “work session” was Planning and Zoning Commission members Patrick Graham, Bob Meinert, Michael Murphy, Dan Olberding, and Jim Willenbring. Members Roger Gibbs, Mike Gogel, Dave Kronlage, and Rebecca Willenborg were absent. Amended minutes were later issued. The only change in the amended minutes was to strike that notation that the meeting was called to order by Denise Stillman. (See Exhibit 10) Various other people, such as some of the Council members, also attended the July 8, 2012, Planning and Zoning Commission’s “work session.” The Planning and Zoning Commission met on July 9, 2012, to discuss the rezoning of the Field of Dreams property from A-1 to C-2. City Administrator Michel described how City staff proposes a 200-foot buffer zone on three sides of the property to be rezoned. He said such a buffer zone “worked very effectively when there was a lot of disagreement with the ethanol plant.” He said it was “created to protect adjoining property owners to make sure that that type of use of development doesn’t occur.” He said concerns were expressed about children playing baseball right up to the fence line or right up to the property line. The 200-foot buffer strip would allow for manure spreading and other farm practices to continue without interfering with the baseball activities. He advised the Planning and Zoning Commission that the City has looked into property values, stormwater issues, and crime issues. Wayne Ameskamp and Matt Mescher both spoke against the rezoning. Mescher questioned the 200-foot buffer zone, and he argued that the reason for the buffer being 200 feet was to effectively prevent the neighboring property owners from objecting (according to Iowa Code §414.5). Gary Sejkora from IIW Engineers spoke about their study of the wastewater that will be generated and the water that will be used. Pat Meinert, a Dyersville resident, spoke about two primary concerns. First, does the aquifer have enough water? And second, how is all of this being paid for? Jack Mescher spoke about



his concerns, including water issues and the 200-foot buffer strip. Julie Nebel from IIW spoke about certain traffic concerns, and she offered some specific information about some of the roads that would be affected by the baseball project. Several other people spoke for and against the rezoning and the project in general. The meeting lasted almost two hours. The Commission voted 8-0 to approve a positive recommendation in favor of the proposed rezoning. The minutes, as they pertain to the rezoning of the Field of Dreams property, from the two-hour Planning and Zoning Commission meeting held on July 9, 2012, provide as follows:

City Administrator Mick Michel provided an overview to the committee regarding the rezoning. By resolution the City Council moved to rezone certain property from A-1 to C-2 with conditional uses. The diagram provided to the committee shows the area to be rezoned to C2. A 200’ buffer on 3 sides of the property will remain A-1. This type of buffer was used for rezoning the ethanol plant and has worked well. This was put in place due to the concerns from neighbors to help them continue their farming practices. Commercial C-2 zoning was determined because it allows for open air recreation which the proposed All-Star Ball Park Heaven project would provide. Other areas of concern that have been addressed are property value, water runoff, water and sewer connection and crime. The 200’ buffer zone should help in retaining the property values of the neighbors. The developers are incorporating water run-off issues into their designs. The developer has also agreed to cover the cost associated with connecting to city water and sewer. It is felt that crime will be limited since the purpose of the field will be for the youth baseball. The property annexed into the city is A-1. In the late 1990’s Dubuque County had rezoned the property from A-1 to B-2. Due to the proposed use of the property it should be rezoned to C-2. Michel stated the responsibility of the committee is to provide a positive report, negative report or not report at all back to the City Council. Wayne Ameskamp (29465 Dyersville East Road) wanted to know why structures could be put on the property. He had a letter from 1999 stating permanent structures could not be built on the property as long as Left and Center Field of Dreams existed. It was signed by Anna O’Shea and Rita Ameskamp. He showed the letter to Chairman Olberding which was then read. Michel advised that was a County agreement. The conditional use clause in the zoning resolution will protect the value and buildings on the property. Any incidental uses beyond those stated would need to be reviewed and approved. Any building permits would be approved by the City Council. If the building is in the 100 yr flood plain, it would need to be reviewed by the Flood Plain Development



Board and then to Council. If the building is in the Floodway it would need DNR approval. At this time there are only conceptual drawings, no final designs have been provided as to where the structures will be. Mary Murphy (911 6th Street SW) was concerned about the conditional uses and if the club houses would be considered residential living. Michael advises the club houses are not considered residential living quarters but are a part of the conditional use. The complex is also part of the conditional use. Matt Mescher (29217 Lansing Road) had questions for the committee. He stated the annexation of the property was not complete until July 3rd but the request to rezone the property was dated July 2nd. Was this legal? City Attorney Marc Casey advised it was. Mescher wanted to know where the 200’ buffer zone came from. Michel advised it was what was used for the ethanol plant and to provide for continued farming practices. Mescher felt it was due to Iowa Code 414.5 which he provided a copy to the committee. This provides property owners within 200’ the right to protest the rezoning and feels his right was taken away. Michel stated the City Code 165.39(5) provides stricter guidelines than the Iowa Code. Mescher also wanted to know why the City is requesting the rezoning and not the Lansing’s (property owners). Michel advised it is because of the Memorandum of Understanding. Chairman Olberding asked if any written protests had been filed and Michel stated nothing was filed. Committee member Meinert asked if there were studies done regarding the increased use of the sewer and water system. Michel advised the City commissioned a study from IIW Engineers and Gary Sejkora from IIW was present. Sejkora advised the existing wells and water system were sufficient. The radium issue will not be affected by the ball park. Water capacity is not a problem. Sejkora advised that it is not feasible to build a separate treatment plant for the ball park or haul it in the from the park. The best plan was to pump it back into the city plant. According to the DNR guidelines, the current wastewater treatment plant is overloaded on some days. The influent amount was average when the plant was built but with DNR changes it is now at maximum levels. The effluent is fine. At this time the treatment plant can handle the ball parks added use. If the DNR changes their guidelines, changes to the treatment plant could be needed with or without the ball park. The committee asked if there was room to expand, Sejkora said yes there is room to expand the treatment plant if needed. Pat Meinert (529 8th Avenue SE) wanted assurance that the water supply would be around in the future and if there was an organization keeping track of it. Sejkora advised the Iowa Geological Survey Bureau studies



and monitors the aquifer the city obtains its water from. The DNR does put restrictions on certain industrial and irrigation uses. Meinert also wanted to know who is paying for all the studies, engineers and lawyers involved. Michel advised the City has an agreement to pay up to $5,000 for fees and studies; the developer is paying the rest. The City Council did approve the $10,000 water/wastewater study. Jack Mescher (29217 Lansing Road) was concerned about the water supply for irrigation for the ball fields. He wanted to know if the irrigation water was coming from the city supply. He calculated 108,000 gallons of water would be used daily for 15 minutes of irrigation. Michel advised the developer does not plan to use city water for irrigation purposes. They plan on using shallow wells and/or ponds for this. Mescher was worried about the long term local water use and the depletion of the supply. The Committee questioned if some of the water would be recycled. Denise Stillman, developer, advised they are planning on recycling the water. They plan on having permeable pavers on the drives and lots. They are also looking at field turf for the infield. No final plans have been laid out yet. The Committee asked if the City could put restrictions on the amount of water used. Michel advised that they could not unless the city was under a dire situation and the restrictions were made city wide. The DNR would set the regulations for irrigation purposes if the irrigation well was from the aquifer. There was discussion regarding the existing well and how much that would be used. Lansing’s were asked if they knew how deep the existing well was. They did not know but could find out if needed. Denise Stillman addressed the committee regarding a packet of information they received and wanted to clarify a few items. She advised there was no connection between her husband and a ball park in Elkhorn. She clarified a statement made at a meeting on Sunday regarding tourism. There will be lots of girls and mothers interested in the Dyersville Doll Museum and local attractions as well as places in Dubuque. Her husband did work for a law firm where he had 70 employees. He has since moved to a smaller firm. The original design was just a concept. After being on the property she is aware that things will need to change and the design will need to be redone. A traffic study has not been done yet. These are usually done later in the process. Stillman stated the largest flow of traffic would be Sunday when the players arrive and then Saturday when they leave. Lowest days would be Monday – Wednesday. The Committee questioned the classification of Dyersville East Road and the intersection at HWY 136. Julie Nebel with IIW was present and said she took a quick look at this and based on 2009 traffic count it was



currently at a Level A which would be no delay. A Level F would indicate gridlock. Even estimating 200 more vehicles, the road/intersection would only move up to a Level C. The wait time for a left turn would be about 6.6 seconds. It was also stated that visitors had other route options available and not all would use Dyersville East Road. Michel advised that 3rd Street SW could have as much traffic during school sessions and there have not been any issues there. Nebel stated criteria for installing a stop light would be 500 vehicles in an 8 hour period on a major street. Jacque Rahe, Executive Director Dyersville Economic Development, asked Nebel if there were traffic figures from the late 1990’s. Nebel said the earliest she had was from 2001 and it was 800 cars on a daily basis. Committee Member Mike Murphy asked how the participants would arrive; single family car, bus, van load, etc. He made a comparison to 2000 kids traveling to school in Farley and Epworth every day during the school year. Stillman advised they usually travel in packs. There are usually multiple kids per vehicle, not just one family per vehicle. So with 1400 kids participating there would not be 1400 vehicles. Rahe advised that she has been talking to the director of the RTA buses and they are willing to transport people between the park, hotels and area attractions. Committee Member Meinert questioned the extra work/time regarding taking over the roads to the Field of Dreams. Michel advised the Public Works Director is working with the County to work out a shared maintenance agreement with them. We have done this in the past with the SW Industrial Park and Ethanol Plant annexations and has worked out favorable for both sides. Committee Member Willenbring asked if there would need to be updates to Dyersville East Road. Michel advised that road had recently been redone. The roads and intersections would be monitored to see if any enhancement would be needed. Stillman was asked when a new drawing of the Park would be available and she was hoping around September. Ameskamp wondered why plans could not be available before all of the decisions were made. Carrie Koelker (807 3rd Street NW) stated she has been a resident of Dyersville for some time; she works for Eastern Iowa Tourism and is a baseball mom. She does a lot of traveling to tournaments and advises that these families spend money on hotels, food, and tourism. The tourism money would be an asset to the community. She said this is a big opportunity for the City of Dyersville and there are many communities that would love to have this opportunity. The community needs to work together and help promote tourism to Dyersville.



Carl Burkle (1335 15th Avenue SE) said he has listened to a lot of negative issues but would like the committee to think about the positive items. When kids and parents leave Dyersville with a smile on their face, they will talk about Dyersville. People will want to come to Dyersville and we need them to come. Karla Thompson, Executive Director Dyersville Area Chamber of Commerce, stated the State is cutting back their tourism budget which will in turn cut their budget. Without advertising it is hard to get the Dyersville name out there. All-Star Ball Park Heaven has a good advertising budget. Their advertising will help promote Dyersville in ways the Chamber can not. It will help fill up the empty store fronts on main street. After no further comments from the committee or audience Gibbs made a motion to approve a positive report to the City Council on the rezoning of Field of Dreams Property from A-1 Agricultural to C-2 Commercial. Motion seconded by Willenbring. Roll Call Vote: Ayes: Roger Gibbs, Mike Gogel, Pat Graham, Bob

Meinert, Mike Murphy, Dan Olberding, Bec Willenborg, Jim Willenbring

Nays: Motion Carried.

The City Council met again on July 16, 2012. One of the agenda items was Resolution 47-12 to fix a date of meeting to consider the rezoning of the property in question from A-1 to C-2. It was unanimously approved 5-0 to set that date for August 6, 2012. The Council met on August 6, 2012. The mayor and all five Council members were present. Attorney Susan Hess spoke first. She referred to a letter that she had tried (unsuccessfully) to deliver to the Council earlier that day. She told the Council that their action was quasi-judicial in nature, and that they are required to remain impartial. She said the Planning and Zoning Commission and the City Council had both failed to remain impartial. She offered a petition with signatures of neighboring landowners. She said the rezoning should be done through a PUD. She said the Council has violated the due process and equal protection rights of the Dyersville citizens. She said she was representing a group of concerned citizens, but that group was not a legal entity of its own. Jack Mescher spoke next. He asked whether the Council members were aware of the City ordinance and/or the State Code regarding the ability to file a written protest if at least 20% of the landowners who are within 200 feet of the property in question object to the proposed rezoning. City Administrator Michel advised the Council not to answer that question. So Jack Mescher suggested that it would be ethically improper for the



Council to knowingly prevent the neighboring property owners from exercising their statutory right to file a written protest. After approximately 30 minutes of discussion, no one else wanted to speak, so the Council closed the public hearing. Molly Evers moved to table Ordinance 770 “until we are educated with what is going on here.” Her motion was not seconded, and it died. The Council then voted on Ordinance 770. The vote passed 4-1, with Molly Evers voting no. Molly read a written statement that lasted more than three minutes. She said more people oppose the project than favor it. She said the project is not good for farmers and farming. The Council then moved to waive the second reading of Ordinance 770. That motion passed 4-1, with Molly again voting no. The Council then voted 4-1 to waive the third reading of Ordinance 770. Sometime after Ordinance 770 was passed, it was brought to the attention of the Council that the legal description of the Lansing property, as provided in Ordinance 770, was incorrect. At the Council meeting on May 6, 2013, the Council voted on Ordinance 777, which would amend (and correct) Ordinance 770 regarding the scrivener’s error in the legal description. The Ordinance would replace all references to “the SW ¼ of the SE ¼ of Section 22, Township 89 North, Range 2 West of the 5th Principal Meridian” with “the SE ¼ of the SE ¼ of Section 22, Township 89 North, Range 2 West of the 5th Principal Meridian.” City Attorney Marc Casey spoke about a “typo” which resulted in an incorrect legal description for one quarter section. He said the map was correct, and he said there isn’t a “person in the world that can deny what was discussed through all these times and what the intention was was to have that square 160 owned by the Lansings, not a 40-acres that wasn’t owned by them and had nothing to do with the Field of Dreams project.” He said “the key is that there was fair notice to the public, and clearly everybody knew what land was being discussed when we talked about this rezoning.” The public was invited to speak on the issue, but no one spoke. The Council then voted to waive the reading of the Ordinance. The Ordinance itself was then moved for approval and seconded, and it passed by a vote of 4-1. Molly Evers voted against the Ordinance. Waiver of the second and third readings of that Ordinance also passed 4-1. Matt Mescher has lived in Dyersville for 50 years. Since June 2006, he has owned 6-7 acres abutting to the Field of Dreams property to the southwest. His land includes a house, a machine shed, a barn, and pasture ground. He enjoys trap shooting, mushroom hunting, gardening, and bonfires on his property. He is generally the spokesperson and primary liaison for RAAC (the Residential and Agricultural Advisory Committee). Mescher knew that the Lansings had listed their property for sale. One day, Becky Lansing called him to inform him that the property had been sold. In December 2011, Denise Stillman contacted the neighbors, including Mescher, and invited them to an informational meeting (held at a hotel). Mescher and others attended. Mescher appeared before, and spoke to, the City Council and/or the Planning and Zoning Commission on at least four separate occasions. On one other occasion, he was in Canada, but his son appeared and spoke on his behalf. Mescher understands that Ordinance 770 had an error and consequently misidentified a 40-acre quarter section of the property. Mescher admits he understood what property was intended to be rezoned by Ordinance 770. Jeff Pape is a farmer who has lived in Dyersville his whole life. He farms a total of 600 acres, some of which he owns and some he rents. He also custom plants another 1,000 acres. He described the very large farm machinery that he and other farmers operate on the roads when



they drive between farms and between fields. He talked about the importance of aerial spraying and the fact that yields would be reduced noticeably if farmers couldn’t spray. He talked at length about the Hewitt Creek Watershed. He is a member of RAAC. He appeared and spoke at least once before the City Council and/or the Planning and Zoning Commission. He admits he saw a water runoff report from IIW Engineers which says water runoff will actually decrease after the project is completed. He also said he is not opposed to the ballpark project itself, just the location. Allan Demmer lives on Lansing Road, directly across from the Field of Dreams, on a 33-acre parcel that consists of a house, a machine shed, and a grain set-up. He is a member of RAAC. He works in Dyersville, but he also farms 460 acres. He is a member of the Hewitt Creek Watershed. Since 2012, he has actually expanded his farming operation, despite the rezoning of the FOD property and the proposed ballpark project. He has purchased an additional 90 acres from his father, and he’s taken a permit to erect two new silos. On March 6, 2012, Allan and his wife, Catherine, sent an email to numerous Iowa legislators regarding their opposition to the project. Mary Ann Rubly is a member of RAAC. She has lived in Dyersville her whole life, and she currently lives on Dyersville East Road. She can see the FOD property from her front porch. Her driveway is approximately one-half mile from the proposed driveway for the new ballpark project. She attended approximately 4-6 of the public meetings. Her main concern is that the peace and quiet of the area would be destroyed by the proposed project. Wayne and Sharon Ameskamp also live on Dyersville East Road, straight west of the FOD. They are members of RAAC. Wayne has lived in Dyersville for 51 years. He spends most of his summer camping on his property down by the Hewitt Creek. He expressed serious concerns about his ability to hunt on his land. He is also concerned about the additional traffic, noise, and lighting. He admits he attended the informational meeting at the hotel in December 2011. He also attended numerous Council and/or Planning and Zoning meetings, and he spoke several times. He admits he spoke with several Council members outside of the public meeting setting. Larry Thier lives ¼ mile east of the Field of Dreams. He has lived there for 53 years, and he’s owned it since 2000. His property consists of 240 acres, which he farmed until 2008. Now he rents the ground to someone else. He is a member of RAAC. He was personally present at the August 6, 2012, Council meeting, but he chose not to speak. Gerald Wolf lives within the Dyersville city limits in a single-family residence. He has lived in Dyersville for 31 years. He is a member of RAAC. He spoke at the Council meeting on June 11, 2012. He did not attend the Planning and Zoning meetings on July 8, 2012, or July 9, 2012. He said he was involved with the hiring of an attorney “to prevent all this.” He is concerned about traffic, flooding, and sewer problems associated with the proposed ballpark project.



RAAC is a limited liability company that came into existence on August 30, 2012. RAAC owns no property but consists of various members, some of whom own property near the Field of Dreams. James Willenbring, Robert Meinert, Roger Gibbs, Michael Gogel, Dan Olberding, Patrick Graham, Rebecca Willenborg, and Michael Murphy were all sitting members of the Planning and Zoning Commission on July 9, 2012. Willenbring had been the City Water and Sewer Superintendent. He continues to sit on the Planning and Zoning Commission, a seat he has held for ten years. He has never met Mike or Denise Stillman. He’s never reviewed the City’s comprehensive plan. Meinert was a Planning and Zoning Commission member for 35 years. He believes the Commission gave the public a fair hearing and fair consideration. His own wife was opposed to the rezoning, but he voted in favor of it because he believed it was good for economic development. Gibbs was not familiar with the Dyersville comprehensive plan. He sits on the Dyersville Economic Development Corporation (DEDC). He did not disclose to the Commission (or to the public) that he attended the bus trip to Des Moines with the Stillmans. Gogel did not consider the comprehensive plan. He never really met the Stillmans. He voted to rezone the property “for the future of Dyersville and for the best of Dyersville.” Olberding was on the Planning and Zoning Commission for 12-13 years and was the chairperson. He had discussed the matter with some of his neighbors, but he had not formulated his decision prior to the official meeting. He voted in favor of the rezoning for “future jobs and basic growth of the City.” Graham had never seen the comprehensive plan. He never spoke with the Stillmans privately. He did, however, meet with Wayne Ameskamp about Ameskamp’s concerns. Willenborg sat on the Planning and Zoning Commission for 20 years. She was familiar with the comprehensive plan, but she didn’t specifically review it prior to the official meeting. She believed the 200-foot buffer strip was required by State Code, and she got that understanding from City Administrator Michel. Murphy believes the Commission held a fair hearing and listened to the concerns of the citizens. James Heavens was the mayor of Dyersville for five two-year terms, running from January 1, 2004, through December 31, 2013. It certainly seems that he believed the proposed All-Star Ballpark project would be good for Dyersville. He traveled to Des Moines to lobby for sales tax rebates. He called the project a “top priority for Dyersville.” He communicated with Jacque Rahe about “needing their yes votes.” Robert Platz was on the City Council for 12 years. He says he “was in favor of (the proposed All-Star Ballpark project) if everything would fall in place.” He understood the 200-foot buffer strip effectively took away the right to protest. He says he relied on the Planning and Zoning Commission’s vote. Daniel Willenborg was on the City Council for 8 years. He went along on the bus trip to Des Moines “in support of the project.” He also understood the 200-foot buffer strip effectively took away the right to protest. In making his decision, he relied on the Planning and Zoning Commission’s vote, general hearsay around the community, and a call he received from a resident who owns a local carwash.



Mark Breitbach first joined the Dyersville City Council on January 1, 2012. He has a bachelor’s degree and a master’s degree, and he taught at the local high school for 40 years. He never met Mike Stillman. He first met Denise Stillman in November 2011, before he had been sworn in, but after he had been elected. He never attended any Planning and Zoning meetings, and he was essentially unfamiliar with the City’s comprehensive plan. He believed the 200-foot buffer strip protected both the developer and the neighboring farmers. He received two phone calls from people who opposed the project, but most of the people he spoke with favored it. Michael English has been on the City Council since 1987. He understood the City was agreeing to use its best efforts to rezone the property, and he believed the project was consistent with the comprehensive plan. He viewed the project primarily as an economic development issue. Molly Evers was on the City Council from 2006 until 2014. She was not involved with any trips to Des Moines or any lobbying for sales tax rebates. On June 8, 2012, she voted to approve the Memorandum of Understanding, the document memorializing the agreement between the City and the developers (Stillmans). She voluntarily attended the 7-8-12 Planning and Zoning work session (and Q&A session with Denise Stillman), but she did not attend the 7-9-12 Planning and Zoning Commission meeting. She ultimately voted against the rezoning of the property in question. Michael Michel has been the Dyersville City Administrator for 11 years. He clearly favored the All-Star Ballpark project. He communicated regularly with the Stillmans and with Dyersville Economic Development Corporation Executive Director Jacque Rahe about the project and the steps needed to move forward. He prepared the map that included the 200-foot buffer strip on three sides of the property. He says the buffer strip was designed to protect the neighboring farmers and their farming practices, but he didn’t speak to those neighbors about the need for such a buffer strip. He knew those neighbors opposed the project, and he knew the buffer strip would effectively limit their ability to protest. Without question, the 200-foot buffer strip was utilized, at least in part, to limit the objectors. Dyersville has had a comprehensive plan in place for many years. A very substantive plan was enacted in 1961-1962. In that plan, the entirety of Dyersville City Zoning Ordinance 285 is included. That Ordinance states, in part, as follows:

WHEREAS, the City Council of City of Dyersville, Iowa deems it necessary in order to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements; to conserve the value of buildings and property; and to encourage the most appropriate use of land throughout the City with reasonable consideration, and in accordance with a comprehensive plan.



Article XVIII of that Ordinance, found on page 8 of the comprehensive plan, pertains to amendments to the zoning districts and regulations, and it contains the exact same language providing for protest as is currently found in Ordinance 165.39(5). The 1961-1962 comprehensive plan discusses some traditional issues and concerns for cities. For example, various road issues are discussed, such as maximum traffic flow with minimal delays, stop signs and signals, the width and surfacing of roads, and the safe movement of traffic. The plan also discusses residential areas, industrial areas, and commercial areas. Most importantly, the plan says that zoning regulations “shall be made with reasonable consideration, among other things, as to the character of the area of the district and the peculiar suitability of such area for particular uses, and with a view to conserving value of buildings and encouraging the most appropriate use of land throughout such city or town.” In 1974, Dyersville enacted their comprehensive development plan of 1974. Regarding future land use, various “goals” were specifically identified. Those goals included:

• Provide for public health, safety, and welfare by insuring orderly development of water sources, methods of waste disposal, and vehicular circulation.

• Develop a pattern of land use that protects and enhances the value of property and the enjoyment of its use while at the same time recognize the intrinsic land suitability.

• Encourage further development of the existing business community by providing the opportunity for expansion and new commercial uses, thus strengthening the image of the downtown area while at the same time discourage proliferation of scattered commercial development throughout the residential community.

• Provide suitable land for industrial development located convenient to utilities and transportation facilities and not incompatible with adjacent uses.

The specific policy recommendations for commercial development were:

• To encourage the retention and expansion of the central business district (CBD) by enhancing the appearance of the downtown area through a coordinated storefront design scheme.

• To encourage the planning and construction of secondary commercial development in well designed clusters, thereby curtailing sprawling strip commercial development along major traffic arteries.

• To encourage business uses to locate only in area which can be easily and economically served with public sewer and water.

In 1975, the City supplemented the 1974 plan. It primarily added a detailed evaluation of

the water, sewer, and waste systems, as well as an analysis of available funds for improvement projects.

In 1991, the City drafted their 1991 Community Builder Plan. That plan stated, in part,

as follows:



The most recent facet of Dyersville’s personality is tourism. The movie site for “Field of Dreams,” the Basilica of St. Francis Xavier, the Dyer House and Doll Museum, the new National Farm Toy Museum, as well as the renewed tourist industry in Dubuque all contribute to make Dyersville a “must see” for thousands of tourists each year. Dyersville would like to keep all of these different facets alive. The community is attempting to maintain a balance between all of its elements and not sacrifice one for another. Each of them are important and each has ample room to grow and flourish within the community. In the Fall of 1991, the “Community Builder Planning Committee” and the citizens of Dyersville scrutinized the community to determine what kind of community Dyersville should be in the future. The main concern that surfaced was that Dyersville must become much more aggressive in guiding and encouraging its own growth.

The 1991 Community Builder Plan also specifically listed 12 different “opportunities,” which included “continued (national/international) attention for Field of Dreams and other tourist attractions.” The plan specifically identified 11 different “threats,” which included “loss of Field of Dreams or other major tourist attraction.” And the plan identified 13 “assumptions about the environment,” which included: “Without any changes, Dyersville’s three main tourist attractions, the Field of Dreams, Xavier Basilica, and the National Farm Toy Museum, will continue to attract a fairly constant number of visitors.” In 1997, Dyersville essentially updated or supplemented their 1991 Community Builder Plan. The report reviewed the action items from the 1991 plan to determine which goals had been accomplished and how to continue to pursue the remaining goals. The City of Dyersville’s 2003 Annexation Plan describes various areas which are “likely” to be annexed in the foreseeable future. (See Exhibit 4) The Field of Dreams property was not contained within any of the areas considered to be “likely” to be annexed within 5 years, 5-10 years, or 10-20 years.

CONCLUSIONS OF LAW

For the purpose of promoting the health, safety, morals, or the general welfare of the community, a city is empowered to regulate and restrict the land for trade, industry, residence, or other purposes. Iowa Code §414.1(1). The regulations shall be made in accordance with a comprehensive plan and designed to preserve the availability of agricultural land; to consider the protection of soil from wind and water erosion; to encourage efficient urban development patterns; to lessen congestion in the street; to secure safety from fire, flood, panic, and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; to promote the conservation of energy resources; to promote reasonable access to solar energy; and to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public



requirements. Iowa Code §414.3(1). The regulations shall be made with reasonable consideration, among other things, as to the character of the area of the district and the peculiar suitability of such area for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city. Iowa Code §414.3(2). A comprehensive plan recommended for adoption by the zoning commission may be adopted by the council. Iowa Code §414.3(4)(a). Following its adoption, a comprehensive plan may be amended by the council at any time. Iowa Code §414.3(4)(c).

The city council shall provide for the manner in which the regulations and restrictions and the boundaries of the districts shall be determined, established, and enforced, and from time to time amended, supplemented, or changed. However, the regulation, restriction, or boundary shall not become effective until after a public hearing at which parties in interest and citizens shall have an opportunity to be heard. Iowa Code §414.4. Regarding a proposed change or repeal, if a written protest against such change or repeal is filed with the city clerk and signed by the owners of twenty percent or more of the area of the lots included in the proposed change or repeal, or by the owners of twenty percent or more of the property which is located within two hundred feet of the exterior boundaries of the property for which the change or repeal is proposed, the change or repeal shall not become effective except by the favorable vote of at least three-fourths of all the members of the council. Iowa Code §414.5. The protest, if filed, must be filed before or at the public hearing. Id.

The Dyersville City Code also includes a mechanism for protest, stating as follows:

If the Commission recommends against, or if a protest against such proposed amendment, supplement, change, modification or repeal is presented in writing to the Clerk, duly signed by the owners of twenty percent (20%) or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending the depth of one lot or not to exceed two hundred (200) feet therefrom, or of those directly opposite thereto, extending the depth of one lot or not to exceed two hundred (200) feet from the street frontage of such opposite lots, such amendment, supplement, change, modification, or repeal shall not become effective except by the favorable vote of all members of the Council.

Dyersville City Code §165.39(5).

In order to avail itself of the powers conferred by Chapter 414, the city council shall appoint a commission, known as the zoning commission, to recommend the boundaries of the various original districts and appropriate regulations and restrictions to be enforced therein. Iowa Code §414.6(1).

A party may commence a certiorari action when authorized by statute or when the party claims an inferior tribunal, board, or officer, exercising judicial functions, or a judicial magistrate exceeded proper jurisdiction or otherwise acted illegally. I.R.C.P. 1.1401. Certiorari may be a proper remedy for reviewing the legality of decisions made by city councils and county boards of



supervisors in zoning matters. Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 692 (Iowa 1980). Generally, a quasi-judicial function is involved if the activity (1) involves proceedings in which notice and an opportunity to be heard are required, or (2) a determination of rights of parties is made which requires the exercise of discretion in finding facts and applying the law thereto. Buechele v. Ray, 219 N.W.2d 679, 681 (Iowa 1974). In the performance of an adjudicatory function, the parties whose rights are involved are entitled to the same fairness, impartiality, and independence of judgment as are expected in a court of law. Martin Marietta Materials, Inc. v. Dallas County, 675 N.W.2d 544, 554 (Iowa 2004) (citing Jarrott v. Scriviner, 225 F.Supp. 827, 833 (D.D.C. 1964)). However, the “essential nature of the decision to rezone is legislative and the hearing before the [council] was of the comment-argument type. The [council] is not determining adjudicative facts to decide the legal rights, privileges or duties of a particular party based on that party’s particular circumstances.” Montgomery, 299 N.W.2d at 694. An illegality is established if the board has not acted in accordance with a statute, if its decision was not supported by substantial evidence, or if its actions were unreasonable, arbitrary, or capricious. Norland v. Worth County Compensation Board, 323 N.W.2d 251, 253 (Iowa 1982). If the district court’s findings of fact leave the reasonableness of the board’s action open to a fair difference of opinion, the court may not substitute its decision for that of the board. Fox v. Polk County Board of Supervisors, 569 N.W.2d 503, 507 (Iowa 1997) (quoting Helmke v. Board of Adjustment, 418 N.W.2d 346, 347 (Iowa 1988)). There is a strong presumption of the validity of a city ordinance, including any amendments. Neuzil v. City of Iowa City, 451 N.W.2d 159, 163 (Iowa 1990). The objecting party has the burden to rebut the presumption and demonstrate the ordinance’s invalidity by showing it is unreasonable, arbitrary, capricious or discriminatory, with no reasonable relationship to the promotion of public health, safety, or welfare. Shriver v. City of Okoboji, 567 N.W.2d 397, 401 (Iowa 1997). A city council acts arbitrarily or capriciously if it acts “without regard to the law or facts of the case.” Dawson v. Iowa Board of Medical Examiners, 654 N.W.2d 514, 519-20 (Iowa 2002). An abuse of discretion occurs when the council action “rests on grounds or reasons clearly untenable or unreasonable.” Schoenfeld v. FDL Foods, Inc., 560 N.W.2d 595, 598 (Iowa 1997). A decision is unreasonable if it is against reason and evidence “as to which there is no room for difference of opinion among reasonable minds.” Stephenson v. Furnas Electric Co., 522 N.W.2d 828, 831 (Iowa 1994).

“Courts reviewing zoning ordinances should not substitute their judgment as to the propriety of the city’s action when the reasonableness of the ordinance or its amendment is fairly debatable.” Neuzil, at 166. “Spot zoning” results when a zoning ordinance creates a small island of property with restrictions on its use different from those imposed on the surrounding property. Kane v. City Council of Cedar Rapids, 537 N.W.2d 718, 723 (Iowa 1995). Not all spot zoning is illegal. Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 696 (Iowa 1980). To determine validity, we consider (1) whether the new zoning is germane to an object within the police power; (2) whether there is a reasonable basis for making a distinction between the spot zoned land and the surrounding property; and (3) whether the rezoning is consistent with the



comprehensive plan. Perkins v. Board of Supervisors, 636 N.W.2d 58, 68 (Iowa 2001). That determination is primarily a legislative matter and is largely within the zoning authority’s discretion. Jaffe v. City of Davenport, 179 N.W.2d 554, 556 (Iowa 1970). “Police power” includes promoting “health and the general welfare” and “the health, safety, morals, or the general welfare of the community.” Marianne Craft Norton Trust v. City Council of Hudson, 776 N.W.2d 302 (Table) (Iowa App. 2009). In determining whether there is a reasonable basis for spot zoning, we consider the size of the spot zoned, the uses of the surrounding property, the changing conditions of the area, the use to which the subject property has been put, and its suitability for various uses. Kane, 537 N.W.2d at 723. Each case is decided based on its own peculiar facts. Jaffe, 179 N.W.2d at 556. If the ordinance creating the spot-zoned area constitutes a piecemeal or haphazard zoning of a small tract of land similar in character and use to the surrounding property for the benefit of the owner and not pursuant to a comprehensive plan for the general welfare of the community, it is arbitrary, unreasonable, and invalid. Id. There is no requirement as to how recently a comprehensive plan must have been enacted or updated to be in effect. In fact, the comprehensive plan need not even be reduced to written form. Webb v. Giltner, 468 N.W.2d 838, 840 (Iowa App. 1991). In rezoning property, the council is not required to make specific written findings of fact. Montgomery v. Bremer County Board of Supervisors, 299 N.W.2d 687, 694 (Iowa 1980). A “meeting,” as defined under the Open Meetings statute, is a “gathering in person or by electronic means, formal or informal, of a majority of the members of a governmental body where there is deliberation or action upon any matter within the scope of the governmental body’s policy-making duties.” Iowa Code §21.2(2). “Open session” means a meeting to which all members of the public have access. Iowa Code §21.2(3). Notice of the time, date, and place of the meeting must be given in a manner reasonably calculated to apprise the public of that information and at least 24 hours prior to the commencement of that meeting. Iowa Code §21.4.

ORDER All parties agree that only the rezoning decision of the Dyersville City Council, made on August 6, 2012, is at issue (with respect to Ordinance 770). Any review of the recommendation from the Planning and Zoning Commission, following their meeting on July 9, 2012, has not been preserved by the Petitioners.

For purposes of determining whether certiorari was available to the Petitioners, the City Council was exercising a quasi-judicial function. However, the essential nature of the rezoning decision was legislative, not adjudicative. Further, the Council was not required to make findings of fact. The Petitioners have not established that any of the Council members were impartial or biased or should have been recused from participating in the vote. It is clear that some or most of the Council members viewed the projected baseball complex as a tremendous opportunity for



the City. And it’s clear that those Council members held that belief very early in the process – long before the vote to rezone the property. But the Council appears to have kept an open mind and offered ample opportunity for all voices to be heard. Councilman Platz said he was “in favor of it if everything would fall in place.” He was obviously concerned about the issues of water, sewer, and funding. Councilman Willenborg admits he went to Des Moines “in support of the project.” Yet he actively participated in all council meetings, listened to concerned citizens, read reports, and asked questions. The Petitioners seem extremely concerned that “many of [the Council members] had decided prior to the meeting that they were in favor of the rezoning.” But the Petitioners are not concerned that Councilwoman Evers wrote her speech opposing the rezoning before the August 6, 2012, City Council meeting. None of the Council members had an improper family or financial interest in the project. None of the Council members were threatened, bribed, or forced to vote in a particular way. The Petitioners have not established any Open Meetings violations. The July 8, 2012, meeting of the Planning and Zoning Commission was called to order by Denise Stillman. It was apparently an overview by Ms. Stillman, followed by a Q&A session when anyone could ask questions of Ms. Stillman. No deliberations were had, and no action was taken by the Planning and Zoning Commission. Even so, notice was posted in a public place more than 24 hours prior to the “meeting.” Some of the Petitioners personally attended. The Respondents claim that some or all of the Petitioners lack standing. The Residential and Agricultural Advisory Committee, LLC, wasn’t even formed until after the rezoning had passed. As such, that entity could not possibly have been damaged by the decision made on August 6, 2012. Further, that entity owns no land (and presumably no assets of any kind – other than perhaps some cash being used to fund this litigation). The LLC appears to be nothing more than a collection of people who share a common interest. It is essentially impossible to imagine how that entity could suffer any harm from the rezoning decision. The individual members of the LLC, and other Petitioners who are not officially members of the LLC, are property owners who live and/or work near the rezoned property. Those such as Mescher, Ameskamp, and Demmer, who live extremely close to the rezoned property, have a significant interest in the zoning and use of the land. Others cannot assert the same level of interest, such as Gerald Wolf, who lives in the Dyersville City limits and would have the same interest as all other Dyersville residents generally. Without weighing the “level” of interest each Petitioner has, the Court is satisfied that the individual Petitioners have standing to proceed; the LLC does not. James Heavens (as the mayor) and Mike English, Mark Breitbach, Robert Platz, and Dan Willenborg (as Council members) have been named personally in this matter. The Petitioners have failed to demonstrate the requisite bad faith necessary to hold any of the Respondents personally liable. As such, any claims asserted personally against Heavens, English, Breitbach, Platz, and Willenborg are now dismissed. Without question, the decision to rezone the property was fairly debatable, fairly debated, and made reasonably. It was not arbitrary, capricious, or discriminatory. The four Council members who voted for the rezoning did so because they truly believed it was in the overall best interest of the City. The Planning and Zoning Commission had unanimously voted to support



the rezoning, and the Council members were certainly entitled to rely heavily upon that recommendation, as well as the detailed minutes from the Planning and Zoning meeting wherein issues were discussed, including property values, water runoff, water and sewer connections, cost, crime, and traffic. Undoubtedly, the primary motivating factor for the Council was economic development and other financially-based issues, such as the creation of new jobs, additional tax revenues, etc. When a City approves a new park, the primary motivation is promoting leisure and recreation and public enjoyment. When a City approves zoning for a new business, the primary motivation is economic development and other financial gains. The Petitioners claim that the rezoning constituted illegal spot zoning. The Respondents disagree. The new zoning is germane to an object within the police power in that the Council clearly considered the health and general welfare of the community. Some of the Petitioners even acknowledged that they support the proposed ballpark; they simply don’t want it so close to their land. Clearly there is a reasonable basis for making a distinction between the newly zoned land and the surrounding property. The property is extremely unique. It has included a baseball diamond for the past 25 years, and baseball has been played on that field rather consistently for the past 25 years. A portion of the property was apparently rezoned some years ago to allow for some sort of commercial activity consistent with continuing the Field of Dreams business endeavors.

The closest and most difficult analysis is whether the rezoning is consistent with the comprehensive plan. Planning and Zoning Commission member Roger Gibbs admits he was not familiar with the Dyersville comprehensive plan. He made the motion to give a positive report to the City Council. Commission member Michael Gogel admits he did not consider the comprehensive plan before he voted. He also admits the comprehensive plan was not discussed at the July 9, 2012, Planning and Zoning meeting. Commission member Patrick Graham admits he had never seen any comprehensive plan. Commission member Rebecca Willenborg was familiar with the comprehensive plan, but she didn’t review it before she voted on July 9, 2012. Commission member James Willenbring had never really looked at the comprehensive plan. Mayor Heavens admits the comprehensive plan was never discussed at the August 6, 2012, City Council meeting. Councilman Mark Breitbach was essentially completely unfamiliar with the comprehensive plan. Councilman Daniel Willenborg actually said his rezoning decision did not have to follow the comprehensive plan.

A “comprehensive zoning plan” is defined as “a general plan to control and direct the use

and development of property in a municipality, or in a large part thereof, by dividing it into districts according to the present and potential use of the properties.” Black’s Law Dictionary – Sixth Edition. In evaluating and reviewing the City’s comprehensive plan, all of the City’s plans, actions, reports, and activities that directly impact the present and potential use and development of property must be considered. For the City of Dyersville, City officials took time and considerable effort and detail in creating the comprehensive plan from 1961-62, the comprehensive plan from 1974-75, the Community Builder Plan from 1991 and 1997, and the 2003 Annexation Plan. Realistically, other legislative action by the City, such as other zoning decisions, also helps to shape the comprehensive plan.



As of 2003, the Field of Dreams property was not contained within any of the areas

considered to be “likely” to be annexed into the City within the next 20 years. Clearly, City officials were not, at that time, anticipating an event such as the sale of the property and/or the proposed ballpark complex. But that doesn’t automatically preclude the property from annexation.

For more than 20 years, Dyersville has identified the Field of Dreams property as having

significant importance in attracting tourists. It was described as attracting “national/international attention.” The loss of the Field of Dreams was identified as a “threat” to the City’s continued interest in tourism and economic development/sustainability. The 1991 Community Builder Plan stated, in part: “The main concern that surfaced was that Dyersville must become much more aggressive in guiding and encouraging its own growth.”

Since the Planning and Zoning Commission members and the City Council members did

not, for the most part, know the contents of the comprehensive plan, it cannot be said that Ordinance 770 was intentionally passed in accordance with that plan. However, it is clear that the issues considered by those two governmental bodies were the very issues addressed by the comprehensive plan, the Community Builder Plan, and the Annexation Plan. In other words, Ordinance 770 was unintentionally and unknowingly passed in accordance with, and in furtherance of, the comprehensive plan.

The Petitioners claim that the 200-foot buffer zone somehow invalidates Ordinance 770.

That argument, as it pertains to Iowa Code §414.5, is moot because four of the five Council members voted to pass Ordinance 770. According to Dyersville City Code §165.39(5), a written protest must be submitted to the City Clerk, “duly signed by the owners of twenty percent (20%) or more either of the area of the lots included in such proposed change, or of those immediately adjacent in the rear thereof extending the depth of one lot or not to exceed two hundred (200) feet therefrom, or of those directly opposite thereto, extending the depth of one lot or not to exceed two hundred (200) feet from the street frontage of such opposite lots.” The letter faxed by Attorney Hess to the City Clerk on August 6, 2012, was signed by Donald Boge, Vernon Boge, Catherine Demmer, Al Demmer, Alice Nadermann, Richard Nadermann, and Dolores Thier. In reviewing the annexation map [Petitioner’s Exhibit 27], it appears that the Demmers and Mr. Nadermann both owned very small portions of the property adjacent to the parcel to be rezoned.

At the start of the August 6, 2012, City Council meeting, Attorney Hess spoke on behalf

of the Petitioners. (The Residential and Agricultural Advisory Committee, LLC was not yet in existence. The reference to the “Petitioners” generally means the parties objecting to the proposed rezoning.) Attorney Hess commented on the super-majority (or unanimous) vote requirement if the matter is properly opposed by the appropriate parties. She said, “One other point that I would like to make, in the event that the petition opposing the rezoning by the neighboring landowners was allowed without the 200 foot buffer that we believe attempts to circumvent the ordinance, it would require a unanimous vote by the Council, so we would ask that, number one, you not vote on it at all, and number two, that the vote be by unanimous members of all Council.” The City Attorney spoke briefly and indicated that only one of the



signers owned land adjacent to the property in question, and therefore he didn’t believe the objectors satisfied their obligation with regard to having the owners of 20% or more of the adjacent property. The Petitioners did not establish, at the Council meeting or at any time with the Council, sufficient opposition to trigger Dyersville City Code §165.39(5). Likewise, the Petitioners did not make the required showing at trial. Further, a majority of jurisdictions have held that an applicant for a zoning change may avoid the necessity for a super-majority (or in this case unanimous) vote by creating a buffer zone between the property to be rezoned and the lands of adjacent property owners. See, e.g., Schwarz v. City of Glendale, 950 P.2d 167 (Arizona 1997); Eadie v. Town of North Greenbush, 854 N.E.2d 464 (New York 2006); Pfaff v. City of Lakewood, 712 P.2d 1041 (Colorado 1986); Heaton v. City of Charlotte, 178 S.E.2d 352 (N. Carolina 1971).

Lastly, the Petitioners claim that Ordinance 777 is illegal. The facts are undisputed. The

legal description of the property described in the proposed zoning change in Ordinance 770 was incorrect. It contained one error, described as a typographical error by the Respondents. The error was discovered sometime after Ordinance 770 had passed. Ordinance 777 proposed to correct the error and amend Ordinance 770 “to correct a scriveners error by substituting the SE1/4 of the SE1/4 of Section 22, Township 89 North, Range 2 West of the 5th Principal Meridian in all places for and removing all references to the SW1/4 of the SE1/4 of Section 22, Township 89 North, Range 2 West of the 5th Principal Meridian.” Notice was provided to the public. No one spoke at the Council meeting about Ordinance 777.

The Petitioners rely almost entirely on the Gorman case in support of their argument. In

1995, a voluntary annexation of 120 acres in Linn County was proposed by the Roemig family. The legal description was incorrect (one quarter section was supposed to be described as the “N1/2 of the SW1/4” but was inadvertently described as the “N1/2 of the SE1/4”), resulting in 80 acres of the Roemig property not being listed and 40 acres of someone else’s property being included in the proposed annexation. The notice and the incorrect legal description were published. The Linn County Board of Supervisors approved the annexation and corrected the error in the legal description, finding that the annexation “substantially complied” with administrative rules. Gorman, a resident of Cedar Rapids, sought judicial review. The Iowa Supreme Court ultimately held that the Roemigs’ application did not substantially comply with the statutory requirements for a voluntary annexation because the applicable statute (now §368.7) requires a legal description of the property to be annexed. Gorman v. City Development Bd., 565 N.W.2d 607 (Iowa 1997).

Ten years after Gorman, the Iowa Court of Appeals found that decision to be “easily

distinguishable” and “inapplicable” to a situation involving an annexation moratorium agreement under Iowa Code §368.4. See, Heintz v. City of Fairfax, 730 N.W.2d 210 (Iowa App. 2007)(Table). The difference was that the statute applicable to the voluntary annexation in Gorman required notice of the legal description of the property, whereas the statute applicable to the annexation moratorium in Heintz did not. Here, neither the Iowa statute nor the Dyersville City zoning ordinance require notice of the legal description. Clearly, the applicants substantially complied with the law. Further, not one person has offered any testimony or evidence that he or she was confused or misled by the incorrect legal description.



For all of the reasons provided herein, the actions of the Dyersville City Council are

sustained, and the writs with respect to Ordinances 770 and 777 are now annulled. Costs are assessed to the Petitioners.


State of Iowa Courts

Type: OTHER ORDER

Case Number Case TitleCVCV101023 E RESIDENTIAL AND AGRICULTURAL ETAL V DYERSVILLE

CITY ETAL

So Ordered

Electronically signed on 2015-05-21 15:05:04 page 26 of 26


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RESIDENTIAL AND AGRICULTURAL ADVISORY … · in the iowa district court in and for dubuque county residential and agricultural advisory committee, l.l.c., an iowa limited liability