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HomeMy WebLinkAbout2001 Lawsuits Of- IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY r�7 THE BENEVOLENT AND ) C' r-, PROTECTIVE ORDER OF THE ) , U.S.A. CORP.,LODGE No. 590 ) NO. �, Q L I�� ) �o Plaintiff, ) ORIGINAL NOTICE vs. ) c-, ) THE CITY OF IOWA CITY, IOWA, ) ERNEST LEHMAN, CONNIE l f you require the assistance of auxiliarya'r`" CHAMPION, DEE VANDERHOEF, ) or services to participate in court because STEVEN KANNER, IRWIN PFAB, ) disability, immediately call your district AC ROSS WILBURN, AND ) coordinator at 319-398-3920. Ext. 200 (If MICHAEL O'DONNELL are hearing impaired, call Relay Iowa TTY GE Defendants. ) 1-800-735-2942). TO THE ABOVE-NAMED DEFENDANT(S): YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court, a Petition for Writ of Certiori, Declaratory Judgment, and Damages in the above- entitled action, a copy of said Petition being attached hereto. The Petitioner's attorney is Gregg Geerdes whose address is 609 Iowa State Bank & Trust Building, 102 S Clinton Street, Iowa City, IA 52240. YOU ARE FURTHER NOTIFIED that unless, within twenty (20) days after service of this Original Notice upon you,you serve and within a reasonable time thereafter file, a motion or answer, in the Iowa District Court for Johnson County, at the Courthouse in Iowa City, Iowa, judgment by default will be rendered against you for the relief demanded in the Petition. LODEMA BERKLEY CLERK OF THE ABOVE COURT Johnson County Courthouse, Iowa City, IA 52240 By: M-14146-1(212/1416C- DEPUTY CLERK NOTE: The attorney who is expected to represent the Defendants should be promptly advised by the Defendants of the service of this Notice. C C . C . C IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY- ` THE BENEVOLENT AND ) PROTECTIVE ORDER OF THE ) U.S.A. CORP., LODGE No. 590 ) NO. LAUD U2_1 (1014; ) Plaintiff, ) PETITION FOR WRIT ) OF CERTIORI, vs. ) DECLARATORY JUDGMENT, ) AND DAMAGES THE CITY OF IOWA CITY, IOWA, ) _ ERNEST LEHMAN, CONNIE ) - CHAMPION, DEE VANDERHOEF, ) -- _ [T STEVEN KANNER, IRWIN PFAB, ) ROSS WILBURN, AND ) Y �� MICHAEL O'DONNELL ) r) ) Defendants. ) COMES NOW, Plaintiff and for a cause of action states as follows: Count I. Claim for Writ of Certiori 1. Plaintiff is a fraternal organization which owns real property on which it operates a golf course and other facilities. This property is located on an area of Iowa City, Johnson County, Iowa which is generally known as The Peninsula. 2. Defendant City of Iowa City is a municipal corporation located in Johnson County, Iowa. 3. The remaining named Defendants are individual members of the city council of Defendant Iowa City as of February 20, 2001. 4. On or about November 26, 1997, Defendant City of Iowa City and Plaintiff en- tered into a written agreement concerning certain real estate, a copy of which is attached as Exhibit A. This document has been recorded in Book 2579, Page 21, records of Johnson County, Iowa. 5. The real estate which is the subject of the agreement described in Paragraph four is the following: Commencing at the South one quarter corner of Section 4,Township 79 North, Range 6 West of the Fifth Principal Meridian, Johnson County, Iowa; thence N 01 degree 39'04" W along the East line of the Southwest one quarter of the said Section 4, a distance of 1317.54 feet; thence S89 degrees 43'51"W, 563.04 feet to a point on the South line of Government Lot 5 of the said Section 4 and the point of beginning; thence S00 degrees 16'09"E, 159.36 feet, thence S45 degrees 57'40"W, 191.63 feet; thence S85 degrees 52'55"W, 170.28 feet; thence S42 degrees 17'10"W, 607.44 feet, S31 degrees 42'52"W, 978.15 feet; thence NO2 degrees 30'39"E, 499.39 feet; thence N37 degrees 47'30"E, 31.58 feet; thence N60 degrees 44'38"E, 1172.28 feet; thence N90 degrees 00'00"E, 283.66 feet to a point on the West line of the East 26.5 acres of the said Government Lot 5; thence SO1 degrees 39'04"E along the said West line, 203.27 feet; thence N89 degrees 43'51"E along the South line of the said Government Lot 5, a distance of 330.00 feet to the point of beginning, containing 24.01 acres, more or less, subject to easements and restrictions of record. Also known as Auditor's Parcel No. 97099, Iowa City, Johnson County, Iowa, according to the plat thereof. 6. By the terms of the attached Exhibit A, Plaintiff was given the exclusive right to use and possess the property described in Paragraph five, with the single excep- tion to this exclusive use and possession being the City of Iowa City's right to install certain water mains and related equipment as specified in Exhibit A. 7. Further, by the terms of the attached Exhibit A title to the property described in Paragraph 5 would be in the Plaintiff so long as this property is used as part of a golf course, and if such use were to cease, title of the property described in Exhi- bit A would revert to Defendant Iowa City upon the occurrence of certain actions, all as specified in Exhibit A. 8. On approximately February 20, 2001, Defendants gave their final approval to a subdivision plat by which the following described property was subdivided into various lots: 2 J!^ ' 1 )1 �^v ��../ r 1 • That part of Auditor's Parcel No. 95080 and all of Auditor's Parcel No. 97099, Iowa City,Johnson County, Iowa described as follows: Commencing as a point of reference at the South quarter-corner of Section 4, Township 79 North, Range 6 West of the 5th P.M.; thence North 1 degree 39'04"West 1317.54 feet along the Ease line of the South- west Quarter of said Section 4 (assumed bearing for this description only); thence South 89 degrees 43'51"West 563.04 feet along the South line of Government Lot 5 of said Section 4,to a Northeasterly corner of said Auditor's Parcel No. 97099 and the point of beginning; thence South 0 degrees 16'09"East 159.36 feet along an Easterly line of said Auditor's Parcel No. 97099; thence South 45 degrees 57'40" West 191.36 feet along a Southeasterly line of said Auditor's Parcel No. 97099; thence South 85 degrees 52'55" West 170.28 feet along a Southeasterly line of said Audi- tor's Parcel No. 97099; thence South 42 degrees 17'10" West 607.44 feet along a Southeasterly line of said Auditor's Parcel No. 97099; thence South 81 degrees 42'52" West 978.15 feet along a Southeasterly line of said Auditor's Parcel No. 97099; thence North 49 degrees 44'00" West 704.00 feet; thence North 15 degrees 34'30" West 615.50 feet, thence North 1 degree 14'00"West 372.58 feet; thence North 8 degrees 12'00" East 329.35 feet to a point of intersection with the Easterly bank of the Iowa River and a Westerly line of said Auditor's Parcel No. 95080; thence North 57 degrees 04'00" East 772.76 along a Northwesterly line of said Auditor's Parcel No. 95080; thence South 65 degrees 32'14" East 972.25 feet along a Northeasterly line of said Auditor's parcel 95080; thence North 76 degrees 18'18" East 468.47 feet along a Northerly line of said Auditor's Parcel No. 95080; thence South 1 degree 39'04" East 981.65 along an Easterly line of said Auditor's Parcel No. 95080 and an Easterly line of said Auditor's Parcel No. 97099; thence North 89 degrees 43'51" East 330.00 feet along a Northerly line of said auditor's Parcel No. 97099 to the point of beginning and containing an area of 82.1 acres more or less. Documentation of this approval is attached as Exhibit B. 9. The subdivision plat described above includes within it the property described in Paragraph 5, above. The remainder of said subdivision property is owned by the City of Iowa City. 10. The City of Iowa City intends to sell various lots within the subdivision to one or 0 more developers for the purpose of construction thereon and for eventual resale or other use. 11. Further,the City of Iowa City is using Plaintiffs exclusive property described 1 3 __ in the attached Exhibit A for purposes of calculating the density of dwelling units permitted to be constructed on the subdivision property referred to above and for various easements and other purposes. 12. Further, the actions by Defendants in incorporating Plaintiffs exclusive property described in Paragraph five within the boundaries of Iowa City's subdivision and Defendants' other uses of the same is contrary to Plaintiffs rights under Exhibit A and precludes Plaintiff from using its exclusive property for Plaintiffs own density and other purposes. 13. Plaintiff has not consented to any of the uses of its exclusive property as described above, nor has Plaintiff received any compensation for the same. 14. The use of Plaintiffs exclusive property for purposes of calculating permitted density in Defendants' subdivision is a violation of Chapters 13 and 14 of the City of Iowa City's Code of Ordinances. 15. The above-described nonconsensual uses without compensation of Plaintiffs exclusive property, which it holds under the terms of the attached Exhibit A, violates Plaintiffs constitutionally inalienable right to protect and retain its property under Article I, Section 18 of the Iowa Constitution, under the 5th and 14th Amendments to the United States Constitution, and effects a taking of Plaintiff s property without compensation. I 16. Plaintiff has been damaged by the actions of Defendants. 1 j WHEREFORE, Plaintiff requests the following relief: „. 1. That the subdivision and subdivision plat described above be annulled and c decreed to be void and illegal. 2. That the City of Iowa City be permanently enjoined from using Plaintiffs exclusive property for purposes of future subdivision, density calculations, easements, or otherwise, except for the water main usages specifically held by the city under the terms of the attached Exhibit A. 3. That Plaintiff be awarded damages for the temporary taking of its property and that thereafter its property be returned to it. 4 , 4. That Plaintiff be awarded the costs of this action, interest, and attorney fees. Count II: Claim for Declaratory Relief 1 - 16 Paragraphs one through sixteen of Count I are hereby realleged as Paragraph one through sixteen of this Count II. 17. Disputes and difficulties have arisen between the parties as to their respective rights and obligations under various statutes, ordinances, and agreements. Specifically, Plaintiff requests that the following be decreed: a) That the uses of the Plaintiffs exclusive property by the Defendants as described in Count I is illegal and invalid as a taking of Plaintiffs property without compensation in violation of the 5th and 14th Amendments to the United States Constitution, and Article I, Section 18 of the Iowa Constitu- tion. b) That the rights of Plaintiff under the attached Exhibit A be determined and established. c) That the uses by Defendants described in Count I are a violation of the exclusive and permanent property rights given Plaintiff under Exhibit A. d) That under Chapters 13 and 14 of the City of Iowa city's Code of Ordi- nances the property described in Paragraph five may not be used to calcu- late the density of dwellings which may be constructed on the remainder of property described in Paragraph 8 of Count I. e) That under Iowa Code Section 354.11 and/or under Section 14-7 of the Iowa City Code of Ordinances Plaintiff under the terms of Exhibit A is an owner or proprietor of property whose consent is necessary before its pro- perty may be included within a subdivision. f) That Plaintiff should be awarded damages for the taking of its property. WHEREFORE, Plaintiff requests that this Court issue the declaratory relief which Plaintiff requests in items (a) - (f), above, award it damages. the costs of this action, attorney 5 • fees, and other relief as requested. Respectfully submitted. BY: GREGG GEERDES (479-70-0831) 609 Iowa State Bank& Trust Building 102 S Clinton Street Iowa City, IA 52240 (319) 341-3304 ATTORNEY FOR PLAINTIFF CZ, 0 7 cr c=1, 6 • `1 00 LOOK 21PAPE_ 1)(0 �►, 98 SEP 17 ani 10: 29 `4 • JOHNSON COUNTY RECORDER IOWA CITY IOWA Prepared by: Eleanor M. Dilkes, City Attorney., 410 East Washington St., Iowa City, IA 52240; (319) 356-5030 PERMANENT EASEMENT FOR GOLF COURSE USE THIS AGREEMENT, is made and entered into by and between The Benevolent and Protective Order of Elks of the U.S.A. Corp., Lodge No. 590, hereinafter "Elks Club", and City of Iowa City, Iowa, a municipal corporation, hereinafter "City." In consideration of their mutual promises herein, Elks Club and City agree as follows: 1 . City hereby grants and conveys to Elks Club a permanent easement over, through and across the Permanent Easement Area as shown and described on Exhibit "A" attached hereto and by this reference made a part hereof (hereinafter "Easement Area") for the purpose of constructing, operating, maintaining and using a minimum of two golf holes,including tee complexes, putting greens, sand traps, ponds, cart paths, irrigation systems and bridges. Said construction and use shall be in accordance with the construction plans approved by the City, attached hereto as Exhibit "B" and by this reference made a part hereof. The Elks Club will indemnify the City and hold the City harmless from any and all damages arising out of the construction, operation and maintenance of the golf holes on the Easement Area, including but not limited to any _ damages or liability result from the Elks Club's handling or application of chemicals on the Easement Area. 2. The grant of the Easement Area to the Elks shall be exclusive with the exception that the City shall be entitled to use the Easement Area to construct, operate, maintain, repair, replace and use water mains and all necessary appurtenances and fittings in connection with said water mains. Said water mains shall be generally located as shown on Exhibit "B" hereto but in no event shall said water mains be located within 50 feet of any golf hole greens as the same are shown on Exhibit "B" hereto. Said construction and repair shall include necessary excavating, piling of dirt, storage of materials and equipment, and ingress and egress of persons to complete construction and repair. If the initial construction and installation of the water mains extends beyond July 1, 1998 the City agrees to repair and restore any damage caused by said con- struction and installation to the Elks storm sewer or irrigation system on the Easement Area. Subsequent to the initial construction and installation the City will repair and restore any damage to the Easement Area caused by reconstruction, maintenance or repair of its water mains located in the Easement Area, including any damages to the Elks storm sewer or irrigation system. Restoration of the surface shall include resodd- ing of those areas within the Easement Area that have been seeded with turf grass in connection with the Elks construction of the golf holes in the Easement Area. 000021, - 2 - 3. The easement granted to the Elks Club hereunder shall be effective from its date of recording with the Johnson County Recorder and shall continue so long as the Ease- ment Area is used by the Elks Club for golf course purposes as set forth in paragraph 1 hereof. In the event that the Elks Club or its successors in interest discontinue said use of the Easement Area as part of a nine (9) hole or more golf course the easement shall terminate and the title, use and possession of the asement &ea shall revert to `the City. If the City e Teves hat The Elks have discontinued said use of the Easement Area the Public Works Director shall prepare and sign an affidavit stating that said use has been discontinued. Said affidavit shall be served on the Elks Club in the manner provided by the Iowa Rules of Civil Procedure for service of original notices along with a notice stating that the easement will terminate and revert to the City unless, within 90 days of the date of service the Elks Club files with the Johnson County Recorder an objection to said notice and serves a copy of its objection on the City in the manner provided by the Rules of Civil Procedure for service of original notices. Absent such objection the recording of the City's affidavit along with proof of service of said affidavit and notice with the Johnson County Recorder shall be conclusive evidence that the permanent easement has terminated and reverted to the City. 4. If the Agreement between City of Iowa City and the Benevolent and Protective Order of Elks of the U.S.A. Corp., Lodge No. 590 signed by the City on October 21 , 1997, and by the Elks on October 31, 1997 is declared null and void by either party for lack of satisfaction of a condition precedent pursuant to paragraph 10 of said agreement, this easement shall immediately terminate. 5. The provisions hereof shall inure to the benefit of and bind the successors and assigns of the respective parties hereto and shall be deemed to apply to and run with the land and with the title to the land. 6, Dated this c , day of Af4 vem , 1997. CITY OF IOWA CITY, IOWA BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE U.S.A. CORP., LODGE NO. 590 By: f4 Lt$iwv By:v N��oomi J. ovic Mayor By: h ;,� �1 • 7 .4 7 By:C.)//,--.€4,11----- .044 /.tit t� rian K. Karr, City Clerk App oved by 7/ L7t i i CORPORATE SEAL = City Attorney's Office Com;; 00002? ' G, .F • •CITY'S ACKNOWLEDGEMENT ,� Il STATE OF IOWA ) } � )ss: c.. JOHNSON COUNTY ) On this �kci day of N o v kir.,box- , 1997, before me, the undersigned, a Notary Public in and for said County, in said State, personally appeared Naomi J. Novick and Marian K. Karr, to me personally known, who being by me duly sworn, did say that they are the Mayor and City Clerk, respectively, of said municipal corporation executing the within and foregoing instrument; that the seal affixed thereto is the seal of said municipal corporation; that said instrument was signed and sealed on behalf of said municipal corporation by authori- ty of City Council of said municipal corporation; and that the said Naomi J. Novick and Marian K. Karr acknowledged the execution of said instrument to be the voluntary act and deed and said municipal corporation, by it and by them voluntarily executed. NAL '�� OT(SRI Pt SE �((\ /Notary m and fort a State of Iowa ELKS CLUB ACKNOWLEDGEMENT STATE OF IOWA ) )ss: JOHNSON COUNTY ) On this gO4L day of )^^ \\O )cCzC C. , 1997, before me, a Notary Public in and for the State of Iowa, personally appeared i,--471( , Oc'� sTh`i and in -oc//ipC.. , to me personally known, who, being by me duly sworn, did say that they are the %62-ee.C7`tz e and O cc..—c e- , respectively, of BENEVOLENT AND PROTECTIVE ORDER OF ELKS OF THE U.S.A CORP., LODGE NO. 590, the corporation executing the within and foregoing instrument, that no seal has been procured by the said corporation; that said instrument was si ed on beiAlf of said corporation by a t ority ofAs s Board of Directors; and that the said - �. 660,x1 �T/f 7��and H vJ d .Gee'/l, c, as such officers acknowledged the execution of said instrument to be the voluntary act and deed of said corporafor17'by it and by them voluntarily executed. I , DMA CHARLES A.MULLEN C.L 6 MYON WIRES 114.7111 September 23,2000Notary Public in and for th- State of Iowa" eleanor\propacq\elks.eas 000023 • EXHIBIT "A" ' • ry r MV R,� 3Qt 1g ;LI g ll:9 • w. UNE Of THE EAST 28.5 Q 1ddg pi/AR. coy, tot 3 I I —--—-ACRES OF GOVT LOTS __7 IT Po&i } �(,)+ I P�okt►k19 Goy, tot I s II v e ,. ,,,,• e Parket -1:k i.,8 F�P�� ti6 ..1- °G?FS 97099 P 9-((<<:7, ' p G!v OJ P 263,66 1 Q Sp v- CIbr°J Na z cL c.,co .c 0 Gov't Lot 5 g n10 g —41-\.0-e5-\ Pitt P 1.71 ACRES -- N 1� �h - 563.0 ----- �:" yy,-Y— --A- 330.00' A 8 S 89'43, W le IS I �� ,Q1e� /3 i y �o��� ������ 170.26' • 4' //� -_ _ v.__ 1; •85'52'55", /ti I `e Gos4,P' QP�G eii/ I ! / ,s 'r\� pl• eP.'t I e, 31.88' w 1./ _1 _ x e �/ / ', o I 978.15 / / I '-g�e GS Atm / a� 581'42 52"W Y'ti� / I • Co y.t COt 4 1✓7n":Kf 1"A. //q 4 I /2 c I // 0` I / I / tzvatesesr / MG 4,T714 RON e\1( 4 my 11/4"&AO PPE S 90'00'00" E (ASSUMEDL 1 1472.90' / 2556.51' __ t _—____ �--_— _—_10_83.-81'_ ---• bI `' �/ • 6.2.mi I/4 LL4O4ft I / r II/E'IM mow I / NezNa I II PROPRIETOR: `, CITY OF IOWA CITY LEGEND AND NOTES -CONGRESSIONAL CORNER,FOUND IRO �r IE-CONORESSIONAL CORNER.RELMTABUSNED GRD 7.G -CONGRESSIONAL CORERECORDED LOCATION 1.■. • -PROPERTY CORNER(B1,FOUND 0 PROPERTY CORNER!UT WS'Iron Pln w/.N Cep)TY k/a BOUNDARY LRE! sa.IR ---- CONORESECTION LMR! . RIGHT-OF-WAY LINES Q........ 7g7 ..... e, LOT LINES,INTERNAL 0,• •,9y ---- LOT LIES,PLATTED OR BY CUD UMW .I'c. EASEMENT LIES.50114 8 PURPOSE NOTED GLEN =T< ) COSMO MUREED EASEMENT p PURPOSE NOTED Le EISNER p o N) RECORDED 4NENNUM - M 8185 71 -, GUNS REPENT NURSE B m MR NO 460 KO 0•% RUN MED DHOWS.Mt De DMORS ARE II FRT AND NUNDEVI GRAPRIC SCALE IN FRIT . *�'e..........`�'',* ERROR OF CLOSURE IS LESS THAN 1 FOOT IN 20,000 FEET 1"-300' IOW P RmiTY CASOENTS MALL NLTRIDe AU.PLATTED RIONT-OF-WAYS AND ARE PROVIDED FOR OAS, ELECTRICITY, TIIPIHONE, T.Y.CABLEYISRON, SANTARY MENERS,WATER MARIS, ANO STORY SERER DRAINAGE. I CERTIFY THAT DURING THE MONTH OF OCTOBER,1997,AT THE DIRECTION OF THE ELKS I hereby certify that this plot prepared by me or under my direct personal COUNTRY CLUB,A SURVEY WAS MADE OF A PORTION OF AUDITOR'S PARCEL 95080 AS RECORDED supervision,Is a correct representation of the survey made with ail corners IN BOOK 35,PAGE 287 IN THE JOHNSON COUNTY RECORDER'S OFFICE,THE BOUNDARIES marked as indicated,and that I am a duly registered Land Surveyor under OF WHICH ARE DESCRIBED AS FOLLOWS: the laws of the State of Iowa. COMMENCING AT THE SOUTH ONE QUARTER CORNER OF SECTION 4,TOWNSHIP 79 NORTH, RANGE 8 WEST OF THE FIFTH PRINCIPAL MERIDIAN,JOHNSON COUNTY.IOWA: THENCE IFYM (A— ,U_ YY\"jam;....-- 7- t-,E NO1'3B'04'W AL0N0 THE EAST LINE OF THE SOUTHWEST ONE QUARTER OF THE SAID pen D.Meleney P.E. &LS.IA.Reg.No. 8165 SECTION 4,A DISTANCE OF 1317.54 FEET; THENCE 589'43'51"W, 583.04 FEET TO A My Biennial Registration expires December 31, 1960 POINT ON THE SOUTH UNE OF GOVERNMENT LOT 5 OF THE SAID SECTION 4 AND THE POINT OF BEGINNING; THENCE S0018'09"E, 159.38 FEET; THENCE 545'57'40"W, AA 191.83 FEET; THENCE 58552'55'V, 170.28 FEET; THENCE 542'17'10"W, 807.44 Signed before me thls�day of .c./V . 1994. FEET; THENCE S81'42'52'W, 978.15 FEET; THENCE NO2'30'39"E. 499.39 FEET;THENCE �/f N , ,./ / 1 N9O'o0'00"E,7283.65 FEET TO AE POINT ON THE WEST UNEET; THENCE OFITHE 2EAST FEET;8 2 .ACRES .4 jff"ii. �/)• (j[,1d 1.144.'- OF ,}4p"OF THE SAID GOVERNMENT LOT 5; THENCE SO1'39'04'E ALONG THE SAID WEST UNE, Notary Public,In&for the Slate of Iowa. 203.27 FEET; THENCE N89'43'51'E ALONG THE SOUTH UNE OF THE SAID GOVERNMENT LOT 5, A DISTANCE OF 330.00 FEET TO THE POSIT Of BECNN610,CONTAINING 24,01 ACRES.MORE OR y KRISTINE L.WALTER LESS,SUBJECT TO EASEMENTS AND RESTRICTIONS OF RECORD. 7 My Commission Expires / December 5,2000 J +i Y Sheet 1111 V---1[- A 1 12/17/97 CO'T - -. PLAT OF SURVEY M MMS CONSULTANTS, INCgg0 N i_CORRECTED DISTANCE N. W = 2. II w(1Project Title: Iowa City, Iowa (319) 351-8282 PLAT & LEGAL o • a 0 AUDITOR'S PARCEL 97099 * o . no Designed by Drawn by. 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Milim.010. .... /.1.11. 111•1•• • 1 ""-t.Seib ail ' *cwt. 0,1•0424 m • AWE'1-111,a_gelarat •_...Li:Ve .... 110•210amwt 42240.1. 001•0100* ._i ..v.. I Q . arcr..c. . i.-0 ;', 1• s'i . iji 4:ir-N• -•.-- ,: . ".:r-±,1 r amoral ........ - 7. n rAsi "md...,*.• Ae.r..ti "'d 0lIVIMIIIIiir''...• ,_ „ .. .. _... I , .1,„„001. . 1111-.4_ '-'17--iiitieliTIM.2.117' • . ' .. -.‘2.,i-. ....• ..-':.'L.:•,:. .......-....--..,___ ... _._ ._.___,...._,_ Sob 10.••••••••0 110•21••••• • .- —.1v.i .--..r-- . -.V- •- ' 0 li ' ' Mit i, c • a.P. ..4a.. •••001.0.. 0•••••0122 04•020.2, (• • .1;1 0 • <i'. • 0 o c i "IllIllikr‘7•• ' 7.21!' .0220.•••••••• 1.04•• t _ •, ___. , • r CI t, I.---._ 2 •‘• fr, ' .2.4-.i'i''''' ••21‘.--•,1A,L . t , , tlirli • • Jr. PENINSULA -,•,-; sirgif-c.anaPy'-'10telg Tisil\------- • -'s- ikre....01---A... --. •""-- f' NEIGHBORHOOD • ,. . ',..- -..-._\ ....c.,..-...,,,,r,.....e.--,...v,-.. tOWA can,IOWA ---....---14.--.—.....---I- .: ..c 0 . ••-•'-'. .t.. •J IWC sou • oft.mr.l000 coop,'CFlat MS Smit Trio Spacings,Pan Yard ad Noun'CP Pim MN Nona Troo Spada.Fro*Yard,Noe Yard NMI**E"Pim With Siwor:Frao Spodnga,Front Yard,Ndo yam omonno• Prirm.Gardan lashoom d Tram,Shona awl liordetape 1d P00210 Gada aalKula al am.rhnda 0,abwillarP. ard hal*,Norden koolionpo of Tow,%al,.and to.d...p. mama maw sy i JEN MC 01000 WI 1.0 0202 OA WW • • I MUNN W. mar oo. • .r ‘ • • . . .. - • - ,,• ... ::.,. „...... ,..-., . . . .,.:-• • • • . . . 1 • , . • . ,•.,A., •. . • .. I .• 2_ .o < a 7d s C) rn Prepared by: Bob Miklo, Associate Planner, 410 E. Washington St., Iowa City, IA 52240; 319-356-5240 RESOLUTION NO. 01-36 ; RESOLUTION APPROVING THE PRELIMINARY PLAT OF THE PENINSULA NEIGHBORHOOD, IOWA CITY, IOWA. WHEREAS, the owner, City of Iowa City, filed with the City Clerk of Iowa City, Iowa, an application for approval of the preliminary plat of the Peninsula Neighborhood; and WHEREAS, the Department of Planning and Community Development and the Public Works Department examined the preliminary plat and recommended approval; and WHEREAS, the Planning and Zoning Commission examined the preliminary plat and, after due deliberation, recommended acceptance and approval of the plat; and WHEREAS, the preliminary plat conforms with all of the requirements of the City Ordinances of the City of Iowa City, Iowa. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF IOWA CITY, IOWA THAT: 1 . The preliminary plat of the Peninsula Neighborhood, Iowa City, Iowa, is hereby approved. 2. The Mayor and City Clerk of the City of Iowa City, Iowa are hereby authorized and directed to certify this resolution, which shall be affixed to the plat after passage and approval by law. Passed and approved this 20th day of Fe. ua , 2001 1111. i., . _oru +'A OR ATTEST: j�� 0, 7C '�._ vAlor,„ CIT LERK City At •rne,iPPI ppdadminlresfpeninsula.doc / d�w• x R Resolution No. 01-36 Page 2 It was moved by Vanderhoef and seconded by Pfab the Resolution be adopted, and upon roll call there were: AYES: NAYS: ABSENT: X Champion X Kanner Lehman O'Donnell X Pfab X Vanderhoef X Wilburn o - i I 1-1-, •• • • END OF CASE FILE C py NOTICE OF NONJUDICIAL FORECLOSURE OF NONAGRICULTURAL MORTGAGE PURSUANT TO IOWA CODE CHAPTER 655A r • i v: ' TO: City of Iowa City Pursuant to that certain judgment c/o The Iowa City City Clerk rendered in favor of the City of Iowa City against Shawn Craig Countryman. Judgment entered in Case No. ICSTIC099978. YOU AND EACH OF YOU ARE HEREBY NOTIFIED THAT Union Planters Bank, N.A. f/k/a Homeland Savings Bank, FSB, has formally commenced a Nonjudicial Foreclosure of Nonagricultural Mortgage Pursuant to Iowa Code Chapter 655A. That attached hereto, marked Exhibit "A," and by this reference made a part hereof, is a true and accurate copy of the Mortgage (hereinafter referred to as the "Mortgage") given from Shawn C. Countryman and Michele L. Countryman in favor of Union Planters Bank, N.A. f/k/a Homeland Savings Bank, FSB. The above-described Mortgage is the first and paramount lien on the following-described real estate located in Iowa City, Johnson County, Iowa, to-wit: Lot 101 Village Green South, Part Two, Iowa City, Iowa, according to the plat thereof recorded in Book 18, Page 67, Plat Records of Johnson County, Iowa. Locally described as 2854 Sterling Drive, Iowa City, Iowa 52240. There is a default pursuant to the terms and provisions of the Promissory Note which said Mortgage secures. There is presently past due and owing on the Promissory Note the following sums: 1) Past due amounts of principal, interest, costs and fees as of January 9, 2001 $4,413.82 TOTAL: $4,413.82 plus interest per day from and after January 9, 2001 plus attorney's fees and costs You and each of you are hereby notified that, unless within thirty days after completed service of this Notice of Nonjudicial Foreclosure of Nonagricultural Mortgage Pursuant to Iowa Code Chapter 655A upon you, that the above amounts, plus all accrued interest, attorney's fees, advancements and abstracting costs are paid in full at the office of Thomas H. Burke, Attorney at Law, Whitfield&Eddy, P.L.C., 317 Sixth Avenue, Suite 1200, Des Moines, Iowa 50309, or a rejection to this Notice pursuant to Iowa Code Section 655A.6 is served upon: Thomas H. Burke Whitfield& Eddy, P.L.C. 317 Sixth Avenue, Suite 1200 Des Moines, Iowa 50309 and filed with the Johnson County (Iowa) Recorder, the Mortgage previously referenced as Exhibit "A" will be foreclosed. s ' Attached hereto, marked Exhibit "B", and by this reference made a part hereof is a true and accurate copy of the Notice of Default and Notice of Right to Cure sent to Shawn C. Countryman and Michele L. Countryman by representatives of Union Planters Bank, N.A., pursuant to Iowa Code Chapter 654. WITHIN THIRTY (30) DAYS AFTER YOU RECEIVE THIS NOTICE, YOU MUST EITHER CURE THE DEFAULT DESCRIBED IN THIS NOTICE OR FILE WITH THE REORDER OF THE COUNTY WHERE THE MORTGAGED PROPERTY IS LOCATED, A REJECTION OF THIS NOTICE AND SERVE A COPY OF YOUR REJECTION ON THE MORTGAGEE IN THE MANNER PROVIDED BY THE IOWA RULES OF CIVIL PROCEDURE FOR SERVICE OF ORIGINAL NOTICE. IF YOU WISH TO REJECT THIS NOTICE, YOU SHOULD CONSULT AN ATTORNEY AS TO THE PROPER MANNER TO MAKE THE REJECTION. IF YOU DO NOT TAKE EITHER OF THE ACTIONS DESCRIBED ABOVE WITHIN THE PERIOD OF THIRTY (30) DAYS, THE FORECLOSURE WILL BE COMPLETE AND YOU WILL LOSE TITLE TO THE MORTGAGED PROPERTY. ATTER THE FORECLOSURE IS COMPLETE, THE DEBT SECURED BY THE MORTGAGED PROPERTY WILL BE EXTINGUISHED. WHITFIELD & EDDY, P.L.C. 317 Sixth Avenue, Suite 1200 Des Moines, Iowa 50309 Phone (515) 288 041/Fax: 2 - 474 By: Thomas H. Burke PK0000602 ATTORNEYS FOR UNION PLANTERS BANK, N.A. f/k/a HOMELAND SAVINGS BANK, FS I:\L'nionlIziters\Co,aaryman.SC,Nonjudiciai Notice IC.w'd 1 0'1 t�1 _Lb 0 LOAN: 1700359 lD�al i �0 r li.tu h::. 006899 .pd. 3i 1996 OCT-2 ri4 10:29 Prepared by: JENNA KNOLL, HOMELAND SAVINGS BANK, FSB mak; ljr'u�::l- 150 EAST !COURT ST IOWA CITY1, IOWA 52240 1 ] [Space Above This Line For Recording Data] MORTGAGE THIS MORTGAGE("Security Instrument")is given on SEPTEMBER 18,1996 .The mortgagor is SHAWN d. COUNTRYMAN AND MICHELE L. CouNTaymAN, HUSBAND AND WIFE 1 ("Borrower").This Security tistrument is given to HOMELAND SAVINGS BANK, FSB which is organized and existi g under the laws of THE UNITED STATES OF AMERICA ,and whose address is 150 EA.. COURT,, IOWA CITY, IOWA 52240 ("Lender").Borrower owes Lender the principal sum of SEVENT"1.4 SEVEN THOUSAND FIVE HUNDRED TWENTY AND NO/100 Dollars (U.S. $ 77,520.00 ?- This debt is evidenced by Borrower's note dated the same date as this Security Instrument("Note"),which provides for monthly payments,with the full debt1 if not paid earlier,due and payable on OCTOBER 1,2026 .This Security Instrument secures to Lender (a)the repayment of the debt evidenced by the Note,with interest,and all renewals,extensions and modifications of the Note;(t)the payment of all other sums,with interest,advanced under paragraph 7 to protect the security of this Security Instrument;and(c)the performance of Borrower's covenants and agreements under this Security Instrument and the Note.For this purpose,Borreiwer does hereby mortgage,grant and convey to Lender the following described property located in County, Iowa: LOT 101 VILLAGE GREEN SOUTH, PART TWO, IOWA CITY, IOWA, ACCORDING TO THE PLAT THEREOF t1ECORDED IN BOOK 18, PAGE 67, PLAT RECORDS OF JOHNSON COUNTY, IOWA PURCHASE MONEY TRIANSACTION which has the address of 2 854 STERLING DRIVE, IOWA CITY [Street,City], Iowa 52 140 [Zip Code] ("Property Address"); IOWA- Single Family-FNMA FHLMC UNIFORM INSTRUMEN- Form 3016 9/90 -6R(IA)195961 Amended 5/91 1111111111111111101111111101111 ° 2161 ?ACE zss VMP MORTGAGE FORMS L:. �C Page 1 01 6 Initials: ? /1-- EXHIBIT aPAGE C) _ - -. TOGETHER WITH all the improvements now or hereafter erected on the property,and all easements,appurtenances,and fixtures now or hereafter a}art of the property.All replacements and additions shall also be covered by this Security Instrument All of the foregoing is referred to in this Security Instrument as the"Property." BORROWER COVENS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Proper'y and that the Property is unencumbered,except for encumbrances of record.Borrower warrants and will defend generally the title to the Property against all claims and demands,subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real property. UNIFORM COVENAN'S.Borrower and Lender covenant and agree as follows: 1.Payment of Principal and Interest;Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on tie debt evidenced by the Note and any prepayment and late charges due under the Note. 2.Funds for Taxes andInsurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note,until the Note is paid in full,a sum("Funds")for:(a)yearly taxes and assessments which may ttain priority over this Security Instrument as a lien on the Property;(b)yearly leasehold payments or ground rents on the Propeity,if any;(c)yearly hazard or property insurance premiums;(d)yearly flood insurance premiums,if any;(e)yearly mortgage ins`.uance premiums,if any;and(1)any sums payable by Borrower to Lender,in accordance with the provisions of paragraph 8, it lieu of the payment of mortgage insurance premiums.These items are called "Escrow Items." Lender may,at any time,collect and hold Funds in an amount not to e'ceed the maximum amount a lender for a federally related mortgage loan may require or Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time, 2 U.S.C.Section 2601 et seq. ("RESPA"),unless another law that applies to the Funds sets a lesser amount.If so,Lender may,at any time,collect and hold Funds in an amount not to exceed the lesser amount Lender may estimate the amount of Fund\due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law. The Funds shall be held n an institution whose deposits are insured by a federal agency,instrumentality,or entity(including Lender,if Lender is suchinstitution)or in any Federal Home Loan Bank.Lender shall apply the Funds to pay the Escrow Items.Lender may not char Borrower for holding and applying the Funds,annually analyzing the escrow account,or verifying the Escrow Items,unless Lelder pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However,Lender may requie Borrower to pay a one-time charge for an independent real estate tax reporting service used by Lender in connection with t}is loan,unless applicable law provides otherwise.Unless an agreement is made or applicable law requires interest to be paid,Lender shall not be required to pay Borrower any interest or earnings on the Funds.Borrower and Lender may agree in writings however,that interest shall be paid on the Funds.Lender shall give to Borrower,without charge,an annual accounting of the Fuf4ds,showing credits and debits to the Funds and the purpose for which each debit to the Funds was made.The Funds are pledged as additional security for all sums secured by this Security Instrument If the Funds held by Lender exceed the amounts permitted to be held by applicable law.Lender shall account to Borrower for the excess Funds in accordaite with the requirements of applicable law.If the amount of the Funds held by Lender at any time is not sufficient to pay the Escr w Items when due,Lender may so notify Borrower in writing,and,in such case Borrower shall pay to Lender the amount neces ary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve monthly payments,at Lender s sole discretion. Upon payment in full of all sums secured by this Security Instrument,Lender shall promptly refund to Borrower any Funds held by Lender.If,under pa\agraph 21,Lender shall acquire or sell the Property,Lender,prior to the acquisition or sale of the Property,shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. 3.Application of Payments. Unless applicable law provides otherwise,all payments received by Lender under paragraphs 1 and 2 shall be applied: fait,to any prepayment charges due under the Note;second,to amounts payable under paragraph 2; third,to interest due;fourth, principal due;and last,to any late charges due under the Note. 4.Charges;Liens. Bork wer shall pay all taxes,assessments,charges, fines and impositions attributable to the Property which may attain priority over this Security Instrument,and leasehold payments or ground rents,if any.Borrower shall pay these obligations in the manner provided in paragraph 2,or if not paid in that manner,Borrower shall pay them on time directly to the person owed payment Born wer shall promptly furnish to Lender all notices of amounts to be paid under this paragraph.If Borrower makes these payme-Its directly,Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a)agrees in writing to the payment of 1114 obligation secured by the lien in a manner acceptable to Lender,(b)contests in good faith the lien by, or defends against enfo cement of the lien in, legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien;or(I)secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument If L Lnder determines that any part of the Property is subject to a lien which may attain priority over this Security Insavment,Lender 15ay give Borrower a notice identifying the lien.Borrower shall satisfy the lien or take one or more of the actions set forth above vithin 10 days of the giving of notice. Form 3016 9/90 4// -6R(IA)19508) Pape 2 of 0 - 2164 FACE 257 Initials: r.7 -71 EXHIBIT _ . 5.Hazard or Property usurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire hazards included within the term"extended coverage"and any other hazards,including floods or flooding,for which Lender .uires insurance.This insurance shall be maintained in the amounts and for the periods that Lender requires.The insurance . r providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld. f Borrower fails to maintain coverage described above,Lender may, at Lender's option, obtain coverage to protect Lender'•1'ghts in the Property in accordance with paragraph 7. All insurance policies . i. renewals shall be acceptable to Lender and shall include a standard mortgage clause.Lender shall have the right to hold the . licies and renewals.If Lender requires,Borrower shall promptly give to Lender all receipts of paid premiums and renewal notic .In the event of loss,Borrower shall give prompt notice to the insurance carrier and Lender.Lender may make proof of loss if n. made promptly by Borrower. Unless Lender and Bo i wer otherwise agree in writing,insurance proceeds shall be applied to restoration or repair of the Property damaged,if the r•. .tion or repair is economically feasible and Lender's security is not lessened.If the restoration or repair is not economically • ible or Lender's security would be lessened,the insurance proceeds shall be applied to the sums secured by this Security In'. ment,whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property,or does not answ:l within 30 days a notice from Lender that the insurance carrier has offered to settle a claim,then Lender may collect the ins : ce proceeds.Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument, hether or not then due.The 30-day period will begin when the notice is given. Unless Lender and B. wer otherwise agree in writing,any applezadon of proceeds to principal shall not extend or postpone the due date of the monthly ayments referred to in paragraphs 1 and 2 or change the amount of the payments.If under paragraph 21 the Property is acquired I.y Lender,Borrower's right to any insurance policies and proceeds resulting from damage to the Property prior to the acquis on shall pass to Lender to the extent of the sums secured by this Security Instrument immediately prior to the acquisition. 6.Occupancy,Preserv.l ion,Maintenance and Protection of the Property; Borrower's Loan Application;Leaseholds. Borrower shall occupy,es. ish,and use the Property as Borrower's principal residence within sixty days after the execution of this Security Instrument and.hall continue to occupy the Property as Borrower's principal residence for at least one year after the date of occupancy, unless - der otherwise agrees in writing, which consent shall not be unreasonably withheld,or unless extenuating circumstances e t which are beyond Borrower's control Borrower shall not destroy,damage or impair the Property, allow the Property to de . .te,or commit waste on the Property. Borrower shall be in default if any forfeiture action or proceeding,whether civil or riminal,is begun that in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair e lien created by this Security Instrument or Lender's security interest.Borrower may cure such a default and reinstate,as pr. 'ded in paragraph 18,by causing the action or proceeding to be dismissed with a ruling that,in Lender's good faith determ' htion,precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Sec ty Instrument or Lender's security interest Borrower shall also be in default if Borrower,during the loan application process,ga materially false or inaccurate information or statements to Lender(or failed to provide Lender with any material information) ' connection with the loan evidenced by the Note, including,but not limited to,representations concerning Borrower's occu i ancy of the Property as a principal residence.If this Security Instrument is on a leasehold,Borrower shall comply with all the pr. inions of the lease.If Borrower acquires fee title to the Property,the leasehold and the fee title shall not merge unless Lender agr.' to the merger in writing. 7.Protection of Lender Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument,or ere is a legal proceeding that may significantly affect Lender's rights in the Property(such as a proceeding in bankruptcy,p bate,for condemnation or forfeiture or to enforce laws or regulations),then Lender may do and pay for whatever is necessary to 1.rotect the value of the Property and Lender's rights in the Property.Lender's actions may include paying any sums secured b a lien which has priority over this Security Instrument, appearing in court, paying reasonable attorneys'fees and entering ;n the Property to make repairs.Although Lender may take action under this paragraph 7,Lender does not have to do so. Any amounts disbursed 'y Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument Unless.Borrowe'and Lender agree to other terms of payment,these amounts shall bear interest from the date of disbursement at the Note rate d shall be payable,with interest,upon notice from Lender to Borrower requesting payment 8.Mortgage Insurance 1 If Lender required mortgage insurance as a condition of making the loan secured by this Security Instrument,Borrower shall I ay the premiums required to maintain the mortgage insurance in effect. If,for any reason,the mortgage insurance coverag. required by Lender lapses or ceases to be in effect,Borrower shall pay the premiums required to obtain coverage substantiall equivalent to the mortgage insurance previously in effect,at a cost substantially equivalent to the cost to Borrower of the m. gage insurance previously in effect,from an alternate mortgage insurer approved by Lender_If substantially equivalent mo Mage insurance coverage is not available,Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly m. gage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect Lender will ac I pt,use and retain these payments as a loss reserve in lieu of mortgage insurance.Loss reserve Form 3016 9/90 AOC'®®-BR(IAN(95061 Paye 9 of 8 inulols: ,fie'-- I v '. 2164 ?ACE 258 _� EXHIBIT 7/- PAGE 3 ,- - - °"-` m /` c�? payments may no longer be •uireu,at the option of Lender,if mortgage insurance coverage(in the amount and for the period that Lender requires)provid .by an insurer approved by Lender again becomes available and is obtained.Borrower shall pay the premiums required to main mortgage insurance in effect,or to provide a loss reserve,until the requirement for mortgage insurance ends in accordan ;with any written agreement between Borrower and Lender or applicable law. 9.Inspection. Lender ur its agent may make reasonable entries upon and inspections of the Property.Lender shall give Borrower notice at the time.; or prior to an inspection specifying reasonable cause for the inspection. 10.Condemnation. I e proceeds of any award or claim for damages,direct or consequential, in connection with any condemnation or other tak' ': of any part of the Property,or for conveyance in lieu of condemnation,are hereby assigned and shall be paid to Lender. In the event of a total . ing of the Property,the proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due,wi. any excess paid to Borrower.In the event of a partial taking of the Property in which the fair market value of the Property im . y before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately bef the taking, unless Borrower and Lender otherwise agree in writing,the sums secured by this Security Instrument shall be educed by the amount of the proceeds multiplied by the following fraction:(a)the total amount of the sums secured imm y before the taking,divided by(b)the fair market value of the Property immediately before the taking.Any balance shall be.•'d to Borrower.In the event of a partial taking of the Property in which the fair market value of the Property immediately befor, the taking is less than the amount of the sums secured immediately before the taking,unless Borrower and Lender oth• se agree in writing or unless applicable law otherwise provides,the proceeds shall be applied to the sums secured by this Securi •Instrument whether or not the sums are Then due. If the Property is aband ned by Borrower,or if,after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for. ages,Borrower fails to respond to Lender within 30 days after the date the notice is given,Lender is authorized to collect and ..ply the proceeds,at its option,either to restoration or repair of the Property or to the sums secured by this Security Instrument, .hether or not then due. Unless Lender and B. . er otherwise agree in writing,any application of proceeds to principal shall not extend or postpone the due date of the monthly .:yments referred to in paragraphs 1 and 2 or change the amount of such payments. 11.Borrower Not Rel ;Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums ured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the '• ility of the original Borrower or Borrower's successors in interest Lender shall not be required to commence proceedings a:.' .t any successor in interest or refuse to extend time for payment or otherwise modify amortization of the sums secured by this S:.' 'ty Instrument by reason of any demand made by the original Borrower or Borrower's successors in interest Any forbearance ;y Lender in exercising any tight or remedy shall not be a waiver of or preclude the exercise of any right or remedy. 12.Successors and Ass'.ns Bound;Joint and Several Liability;Co-signers.The covenants and agreements of this Security Instrument shall b' d and benefit the successors and assigns of Lender and Borrower, subject to the provisions of paragraph 17. Borrower's ..venants and agreements shall be joint and several. Any Borrower who co-signs this Security Instrument but does not ex. ute the Note: (a) is co-signing this Security Instrument only to mortgage,grant and convey that Borrower's interest in the • .. under the terms of this Security Instrument;(b)is not personally obligated to pay the sums secured by this Security In .; ment;and(c)agrees that Lender and any other Borrower may agree to extend,modify,forbear or make any accommodations th regard to the terms of this Security Instrument or the Note without that Borrower's consent 13.Loan.Charges. If e loan secured by this Security Insuvment is subject to a law which sets maximum loan charges, and that law is finally interp "ted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits, ; en:(a)any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;and(b)any• ms already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to makthis refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund redo., principal,the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14.Notices. Any noti +'.to Borrower provided for in this.Security Instrument shall be given by delivering it or by mailing it by first class mail unless apicable law requires use of another method.The notice shall be directed to the Property Address or any other address Borrower I esignates by notice to Lender.Any notice to Lender shall be given by first class mail to Lender's address stated herein or any .ther address Lender designates by notice to Borrower.Any notice provided for in this Security Instrument shall be deemed . have been given to Borrower or Lender when given as provided in this paragraph. 15.Governing Law;Se'•rability. This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the ' ..-rty is located.In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law'such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the con „cling provision.To this end the provisions of this Security Instrument and the Note are declared to be severable. Form 3016 9/90 40 6R(IA)MN) Page.of 6 ' " ,LOt f•1 i'il:k 259 EXHIBIT r PAGE C7 �c, CO--1. w —._s . 16.Borrower's Copy. Borrower shall be given one conformed copy of the Note and of this Security Instrument. 17.Transfer of the ' t rty or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred(or if a eneficial interest in Borrower is sold or transferred and Borrower is not a natural person)without Lender's prior written cons. t,Lender may,at its option,require immediate payment in full of all sums secured by this Security Instrument.However,this .w tion shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument If Lender exercises this ;ption,Lender shall give Borrower notice of acceleration.The notice shall provide a period of not less than 30 days from the date I e notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument.If Borrower fat to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument : hout further notice or demand on Borrower. 18.Borrower's Right t Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Securi Instrument discontinued at any time prior to the earlier of: (a)5 days (or such other period as applicable law may specify }r reinstatement)before sale of the Property pursuant to any power of sale contained in this Security Instrument or(b)entry of a udgment enforcing this Security Instrument Those conditions are that Borrower.(a)pays Lender all sums which then would be ale under this Security Instrument and the Note as if no acceleration had occurred;(b)cures any default of any other coven or agreements;(c)pays all expenses incurred in enforcing this Security Instrument,including,but not limited to,reasonable•. rneys'fees;and(d)takes such action as Lender may reasonably require to assure that the lien of this Security Instrument, Lend'i s rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue u I changed. Upon reinstatement by Borrower,this Security Instrument and the obligations secured hereby shall remain fully eff five as if no acceleration had occurred.However,this right to reinstate shall not apply in the case of acceleration under paragraph 117. 19.Sale of Note;Chan: of Loan Servicer. The Note or a partial interest in the Note (together with this Security Instrument)may be sold on:or more times without prior notice to Borrower.A sale may result in a change in the entity(known as the"Loan Servicer")that to]leets monthly payments due under the Note and this Security Instrument.There also may be one or more changes of the Loan ''rvicer unrelated to a sale of the Note.If there is a change of the Loan Servicer,Borrower will be given written notice of the c ange in accordance with paragraph 14 above and applicable law.The notice will state the name and address of the new Loan S. 'cer and the address to which payments should be made.The notice will also contain any other information required by app •de law. 20.Hazardous Substan''es. Borrower shall not cause or permit the presence, use, disposal, storage,or release of any Hazardous Substances on or the Property.Borrower shall not do,nor allow anyone else to do,anything affecting the Property that is in violation of any E ironmental Law.The preceding two sentences shall not apply to the presence,use,or storage on the Property of small quantities .f Hazardous Substances that are generally recognized to be appropriate to normal residential uses and to maintenance of the Pr ,..rty. Borrower shall prompt] give Lender written notice of any investigation,claim,demand, lawsuit or other action by any governmental or regulatory eency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actu. knowledge.If Borrower learns,or is notified by any governmental or regulatory authority,that any removal or other remediatio of any Hazardous Substance affecting the Property is necessary,Borrower shall promptly take all necessary remedial actions' • .[•dance with Environmental Law. As used in this paragra'h 20, "Hazardous Substances" are those substances defined as toxic or hazardous substances by Environmental Law and th I following substances: gasoline, kerosene, other flammable or toxic petroleum products, toxic pesticides and herbicides,v.;:tile solvents,materials containing asbestos or formaldehyde,and radioactive materials.As used in this paragraph 20,"Environ ental Law"means federal laws and laws of the jurisdiction where the Property is Iocated that relate to health,safety or environm. tal protection. NON-UNIFORM COV i NANTS.Borrower and Lender further covenant and agree as follows: 21.Acceleration;Rem dies.Lender shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agree j ent in this Security Instrument (but not prior to acceleration under paragraph 17 unless applicable law provides of rwise).The notice shall specify:(a)the default;(b)the action required to cure the default;(c) a date,not less than 30 da s from the date the notice is given to Borrower,by which the default must be cured;and(d) that failure to cure the def.' It on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrumen' foreclosure by judicial proceeding and sale of the Property.The notice shall further inform Borrower of the right to re I state after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or any other d•tense of Borrower to acceleration and foreclosure.If the default is not cured on or before the date specified in the notice Lender,at its option, may require immediate payment in full of all'sums secured by this Security Instrument witho I further demand and may foreclose this Security Instrument by judicial proceeding.Lender shall be entitled to collect a I expenses incurred in pursuing the remedies provided in this paragraph 21,including,but not limited to,reasonable attor I ys'fees and costs of title evidence. 22.Release. Upon pa ent of all sums secured by this Security Instrument,Lender shall release this Security Instrument without charge to Borrower. 23.Waivers. Borrow- relinquishes all right of dower and waives all right of homestead and distributive share in and to the Property.Borrower waives. i right of exemption as to the Property. �n1 Form 3016 9/90 Alt -6R(IA)19506) I Pape 5015 v .i 1S.1,fit 260 Init1011. EXHIBIT hPAGE U o -j G' I !1 1 _ _'., y CO I -4 >-- c I (Thi L1 J —7-39Vd 119IFIX3 6661`L 1sn8nV I W' 06/6910£Wrod -nolo H138VZ1n9VNa 4 91999694TBZ, V9 (9096)(iin19•%a" ares pus drunoD pec ror pus ill ogq div- ' r ' 96-£1-07 :sandxguolssruiwo0AIN 'pap puu lag Arelunlon azagl 941 patnoo a Aagl 1E1P pa2palmoupoe pue 1uawnnsui 2ulo2aroj aq1 painaaxa oqm pue to paweu (s)uosiad alp aq a1 umourl Apuosrad a}ZM pus puegsnq °uswACl4uno3 " ajagoilq pus uswAalun0o 'g UMsl(S panaddeAlleu0srad 'ma! Jo axis oqi ui oggnd AreloN a 'aur mpg ` 9661 ` aagwaldas Jo nep til8T sig] u0 :ss A1unop `VMOI d0 3IVIS ramonog- nmonog- (iLs) (IaS) - 4 9TZ£-86-091 ramonog- � (ISS) MDT"trim.•_ r s 'I a H. I �>' I 8852-06-581 ramonog- r1NIclaxsrulo3 xntrlxs (IMS) — - , :sass'wiM •!ttwn paproaar pug rano nog Aq palnoaxa(s)rapu Aue uipus to, .5 i pa ueuan00 pus swral 04101 saar2e pug 5!490019 ramonoE `MOTgg ONINDIS AH [ ods](s)10410 Q rapil!VA 0 rapig awoH puooaS n rapi 1 tuawanOrduq ateg 0 rapig uooneg n rap12l tuau .i Av1a0Mlg rapm tuawdolanaa tlufl pauueld 0 lap!WtuouIAed palenpeio n -1°P111 XIPus317-1 n ram wmmwopuoD raprx ale);a1q isn[pV [(sa)xoq olgsgdd©q3] luawnnsui Alunaas sup Jo l]ed a gram(s)rapp alp p se luawnrlsu]Awnoas sup Jo>luawaaj2e pue stueuanoa 941 tuawa1ddns pue puowe!legs pue oiui parerodroaul aq pegs rape Ions gosa Jo stuawaar2e pue slueronoo 941'luaumusul A]pnaas sup gum.1941920]papr000r put raMouog Aq pamoaxa 0m srapp grow 30 ago JI 'mourn-twig Avnaas slgl 01 siaPIII'SZ ( •Imo!Jo 0p00 alp 10 LZ-8Z9 Pus 9Z-SZ9 suogaas Jo suoisieosi 94101 ulioJuoo 01 pacwsuoo 09 Reqs qZ gdei2gred sup Jo suoisinord agy-sAep 09 01 pampa'aq pelts ales lepipnf wort uopdtmapar Jo pop9d alp'Jamonog isule2e luaw2pnf AouaiolUap a of 1112u Aue soniem rapua•7 pue ramouog Aq pauopuege uaaq 5199 Auadord all1 Imp spw3!moo 041 JI's1Puow 9 01 pampa]aq Belts ales p:io!pnf wort uogdwapar Jo popad 041`10Monog tsule2e]rtaw2pnf Aoua!ol-Jap a 0114261 Aue 2moi =swap);pa =swap);Aue ui San1eM rapua-i pue ails u!same 01 ue p ssal Si Auadord 941 JI 'POpad uo1]dwapag pZ t - cm AUNION PLANTERS PMAC Portfolio Mo Ad Itt Won Center October 04 , 2000 Shawn C Countryman Amount Declared To Be In Immediate Michele L Countryman Default And To Prevent Further Action: Amount Due : $ 1 , 940 . 42 Loan Number: 1890034823 2854 Sterling Dr Iowa City IA 52240-3045 NOTICE REQUIRED BY FEDERAL REGULATION You may have breached your loan agreement by failing to make your scheduled payments . You may cure your breach by promptly paying all past due payments . Please note that if a late charge or any other payments become due prior to our receipt of the amount referenced, it will be necessary that you add the appropriate amount to the amount indicated above . Your loan must be paid current within thirty (30) days of the date of this letter. If you fail to cure this breach by this deadline, all remaining monthly installments will automatically become due and payable in full and we may elect to foreclose. Of course, you will have the right to reinstate the loan at any time prior to foreclosure or bring legal action to contest the foreclosure. You should give this matter your immediate attention. Your failure to cure this default will result in additional costs, such as legal fees, and may result in you losing your property by foreclosure. Union Planters offers a home ownership counseling service . If you are in need of this service, please call (601) 554-2200 or 1-800-748-9498 . Additionally, the Department of Housing and Urban Development offers a home ownership counseling service through various agencies. A list of the agencies for your area may be obtained by calling 1-800-569-4287 . LOAN STATUS AND BALANCE DUE AS OF THE ABOVE DATE Loan Pd ! Unpaid Prin. ! Unapplied ! Tax & Ins. ! Unpaid ! Other Unpd. through ! Balance ! Payments ! Status ! Late Chgs. l Legal Cost ! Unpd. Tax ! ! Fees & Misc ! ! & Ins. Due ! 06-30-00 ! $ 74, 862 . 39 ! $ 384 . 93 ! $ 322 . 14 ! $ 86.48 ! $ 20 . 00 You have 30 days from the date of this notice to dispute in writing any portion of the above amount declared to be in default or the loan balance or unapplied payments or status of any unpaid taxes and/or insurance, late charges or other unpaid fees and costs. Any specific disputed items will be held in abeyance pending verification. Unless the disputed amount involves and equals or exceeds the amount declared to be in default as stated above the foreclosure process will not be terminated. All balances will be assumed correct unless we receive your written notice of dispute. You are further entitled within the 30 day period to request in writing and be provided the name of the original creditor. written notices should be addressed to Matthew B re a z e o ete Bt c-fi88'ffu1ggew3baad gA64.84)94 --215 Hattieab urb,M6 39401 3476 601-554-2000 • WATS 1-800-986-2462 • (email) pmac-debult@upbna.00m "Union Planters PMAC may be a debt collector under the Fair Debt Collection Practices i 013/050 and all communication may be used for the purpose of collecting any debt you may owe." END OF CASE FILE IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY MICHAEL BERENT, et al., ) ) Plaintiffs, ) Nos. EQCV062049 v. ) ) CITY OF IOWA CITY, et al., ) ACCEPTANCE OF SERVICE ) Defendants. ) ) STATE OF IOWA ) )ss: JOHNSON COUNTY ) I, Marian K. Karr, as City Clerk for the City of Iowa City, Iowa, hereby acknowledge that I have received a true copy of the Original Notice and Application for Writ of Mandamus in the above-entitled action, and I hereby accept service on behalf of the City of Iowa City. Dated at Iowa City, Iowa, this day of September, 2001. 7itcee?--x-r--)' 4-1- -2 .4.-4.--) Mar K. Karr City Clerk, City of Iowa City Subscribed and sworn to before me by Marian K. Karr this 4 day of September, 2001. J SONDRAE FORT Srind.1 a Fb i Commission Number 159791 Notary Public in and for the State of Iowa. My Commission Expires low 3- 7- d3 N o 0 •• •0rn F m s > CA rn IN THE DISTRICT COURT OF IOWA IN AND FOR JOHNSON COUNTY, IOWA MICHAEL BERENT,MATT BLIZEK, ) MORI COSTANTINO, AMANDA ) COYNE, CAROLINE DIETERLE, ) LOLLY EGGERS, JENNIE EMBREE, ) No. EQCV Ott a.b SARA EPSTEIN, ELLEN HAYWOOD, ) PAUL INGRAM, JON KLINKOWITZ, ) KAREN KUBBY, BETTE MAYES, ) MICHAEL ROMP, ROD SULLIVAN, ) ORIGINAL NOTICE SARA SWISHER,BOB THOMPSON, ) NICHELLE THOMPSON,JEFF ) THORNE, ROBERTA TILL-RETZ, ) and JAMES WALTERS, ) ) Plaintiffs, ) vs. ) O CITY OF IOWA CITY, CONNIE ) n r`�n —i "J CHAMPION, STEVEN KANNER, ) { ERNEST W. LEHMAN, MIKE ) �� ' O'DONNELL,IRVIN PFAB, DEE ) VANDERHOEF, and ROSS WILBURN, ) as members of the City Council of Iowa ) City, Iowa, ) ) Defendants. ) TO THE ABOVE-NAMED DEFENDANTS: YOU ARE HEREBY NOTIFIED that there is now on file in the office of the Clerk of the above Court,a Petition in the above-entitled action, a copy of which Petition is attached hereto. The Petitioner's attorney is Bruce D.Nestor, 102 S. Clinton Street#311, Iowa City,IA 52240. YOU ARE FURTHER NOTIFIED that unless,within 20 days after service of this Original Notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the County Courthouse in Iowa City, Iowa,judgment by default will be rendered against you for the relief demanded in the Petition. LOD • _dir �; (SEAL) I 61/ RK • ' DISTRIri COURT Johns• I County Courthouse Iowa City,IA 52240 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 . (If you are hearing' paired,call Relay Iowa TTY at 1-800-735-2942) JCA-3etab EV- YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTEREST • IN THE DISTRICT COURT OF IOWA IN AND FOR JOHNSON COUNTY, IOWA MICHAEL BERENT, MATT BLIZEK, ) C? T MORI COSTANTINO, AMANDA ) 2 -a COYNE, CAROLINE DIETERLE, ) 0 r . LOLLY EGGERS, JENNIE EMBREE, ) No. EQCV 0 t _anti ) -'-n 0 SARA EPSTEIN, ELLEN HAYWOOD, ) p PAUL INGRAM, JON KLINKOWITZ, ) KAREN KUBBY, BETTE MAYES, ) MICHAEL ROMP, ROD SULLIVAN, ) APPLICATION FOR WRIT SARA SWISHER, BOB THOMPSON, ) OF MANDAMUS NICHELLE THOMPSON,JEFF ) THORNE, ROBERTA TILL-RETZ, ) and JAMES WALTERS, ) ) Plaintiffs, ) vs. c.- = �? CITY OF IOWA CITY, CONNIE ) `j' — CHAMPION, STEVEN KANNER, ) o I' ERNEST W. LEHMAN, MIKE ) O'DONNELL,IRVIN PFAB, DEE ) -' f v Q VANDERHOEF, and ROSS WIT BURN, ) as members of the City Council of Iowa ) City, Iowa, ) ) Defendants. ) Plaintiffs, by and through their attorney Bruce D. Nestor, and pursuant to Chapter 661 of the Code of Iowa and Rule 120 of the Iowa Rules of Civil Procedure, state as follows in support of their Application for Writ of Mandamus: I. INTRODUCTION Plaintiffs bring this action to obtain a court order compelling the Iowa City Council to submit proposed amendments to the Home Rule Charter for the City of Iowa City to the voters of Iowa City at a special city election, as required by the Home Rule Charter and Section 372.11 of the Iowa Code. Plaintiffs further seek an award of the costs of this action. II. FACTS 'n 1. Plaintiffs are eligible electors of the City of Iowa City. C) 4_ Fn 2. Plaintiffs are among approximately 1,600 eligible electors of the City.afva City ?-1 who signed petitions seeking submission of three proposed amendmear to the cal Home Rule Charter of the City of Iowa to the voters of Iowa City at the regular City election scheduled for November 6, 2001. 3. On August 20, 2001, petitions signed by approximately 1,600 eligible electors of the City of Iowa City were presented to the City Clerk for the City of Iowa City. 4. The City Clerk of Iowa City determined the petitions were valid on their face and accepted the petitions for filing. 5. The number of signatures on the petitions by eligible electors for the City of Iowa City far exceeded ten percent of the number of persons who voted at the last preceding regular city election. 6. The signatures of a number of eligible electors for the City of Iowa City equal to at least ten percent of the number of persons who voted at the last preceding regular city election contained a statement of the signer's place of residence and the date on which they signed the petition. 7. On or about August 30, 2001, a committee appointed by statute and by the Iowa City Council ["Objections Committee"], and consisting of Iowa City Mayor Ernie Lehman, Iowa City Councilor Ross Wilburn, and City Clerk Marian Karr, upheld one or more objections to each of the proposed amendments. 8. As a result of the decision of the Objections Committee, the proposed amendments will not be submitted by the Iowa City Council to the voters of Iowa City, Iowa, at a special election. _ = O o n III. WRIT OF MANDAMUS 3' -0 —n 9. Plaintiffs restate Paragraphs 1-8 above. _-=1G rn __ rn O 7- 10. Section 8.0(C) of the Home Rule Charter for the City of Iowa City priedes for. (ft amendment of the Home Rule Charter through a process initiated by a petition signed by eligible electors of the City of Iowa City. Such a procedure is authorized by Section 372.11 of the Code of Iowa(2001). 11. Petitions which were valid under Section 8.01 of the Home Rule Charter for the City of Iowa City and Section 362.4 of the Code of Iowa(2001) were properly filed with the City Clerk of the City of Iowa City. 12. Pursuant to Section 8.01(C) of the Home Rule Charter, and Section 372.11 of the Code of Iowa(2001), the Iowa City Council "must submit the proposed amendment[s] to the voters at a special city election" upon the filing of petitions valid under Section 362.4 of the Code of Iowa(2001). 13. The failure of the Iowa City City Council to submit the proposed amendments to the voters at a special city election constitutes the failure to perform a duty imposed by law by virtue of the office,trust or station held by the members of the Iowa City Council. 14. The decision by the Objections Committee with respect to proposed Amendment No. 2 and Amendment No. 3 is invalid under Section 362.6 of the Iowa Code (2001), in that Mayor Ernie Lehman has an actual conflict of interest by virtue of being a candidate for re-election in the November 6, 2001, general election. 15. The delegation by the Iowa City City Council to the Objections Committee of the power to prevent the proposed amendments from submitted to the voters at a special city election is improper in that it divests the City Council of a power granted to it by State law and the Home Rule Charter and, with respect to Amendments No. 2 and No. 3, allowed a non-elected official to make the decisive vote with respect to whether the amendments would be submitted to the voters of Iowa City at a special election. 16. The decisions of the Objections Committee were incorrect as a matter of law, in that each of the proposed amendments, as drafted, was proper to be considered by the voters of Iowa City as an amendment to the Home Rule Charter for the City of Iowa City. 17. Plaintiffs have demanded that the City Council for the City of Iowa City submit the proposed amendments to the voters at a special city election and performance of this duty imposed by law on the Council has been refused or neglected. 18. There is not a plain, adequate, and speedy remedy available to Pim"' s in t1 ►`i ordinary course of law, other than the issuance of a Writ of Mandate5-4Zy 11 Court. _rn -0 �� - 19. As eligible electors of the Cityof Iowa Ci O ns g City, and signers of the pet�pns cn rn supporting the proposed amendments, the Plaintiffs are personally interested in this proceeding. 20. Plaintiffs have or will sustain damages as a result of the non-performance of a duty imposed by law on the Defendants, including but not limited to, a denial of their constitutional right to petition the government for redress of grievances guaranteed by the First Amendment to the Constitution of the United States and a denial of their right to alter or reform government as guaranteed by Article I, Section 2 of the Constitution of the State of Iowa. Defendants' acts, which have disenfranchised the Plaintiffs in violation of state law, also constitute a violation of substantive due process, in violation of the Fifth Amendment to the Constitution of the United States and Article I, Section 9 of the Constitution of the State of Iowa. WHEREFORE, Plaintiffs pray that this Court issue an Order of Mandamus, compelling the Defendants to fulfill the duties imposed upon them by law and directing the Iowa City Council to submit the proposed amendments to the voters of Iowa City at a special election as required by Statute and the Home Rule Charter for the City of Iowa City. Bruce D. Nestor, 484-90-0285 TINDAL, ERDAHL, GODDARD &NESTOR 311 Iowa State Bank Building Iowa City, Iowa 52240 (319) 351-4567 - Phone (319) 338-4266 - Facsimile ATTORNEY FOR PLAINTIFFS cc: Eleanor Dilkes, City Attorney City of Iowa City 410 E. Washington Street Iowa City, IA 52240 Certificate of Service I certify that a true copy of this document was served upon each C d attorney of record of all parties to the action in compliance with Iowa R.C.P. 82(b), by (1) U.S Mail; (2) hand delivery; on thejsz. to $:0 day of 4.5. 200/2 C7 -a' 1 - o ' 0rn cn END OF CASE FILE ACCEPTANCE OF SERVICE Marian K. Karr does hereby acknowledge receipt of the attached Petition for Writ of Certiorari and accepts service of such document on behalf of The City of Iowa City, Iowa. Dated this j, day ofl , 2001. The City of Iowa City, Iowa By: lC Ma,ce.rian K. Karr, Clerk STATE OF IOWA ) ss: COUNTY OF JOHNSON ) On this /,.5 //day of / ) /(4 , 2001, before me the undersigned, a Notary Public in and for the State of Iowa, personally appeared Marian K. Karr, to me personally known, who, being by me duly sworn, did say that she is the City Clerk of the City of Iowa City, Iowa, a municipal corporation; that the seal affixed to the foregoing instrument is the corporate seal of the corporation, and that the instrument was signed and sealed on behalf of the corporation, by authority of its City Council; and Marian K. Karr acknowledged the execution of the instrument to be her voluntary act and deed and the voluntary act and deed of the corporation, by it voluntarily executed. Notary Public in and for the State of Iowa KELLIE K.TUTTLE MY COMMISSION EXPIRES o ow April 5,2002A. 0 p r-- ill � o 0 FILED IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON CO SOUTHGATE DEVELOPMENT ) C V gl E l','', f F F 1"l;'i !illP.1 COMPANY, INC., ) LAW NO. Cai CJLLII CR;N FY, IO*A 0 a Plaintiff, ) PETITION FOR WRIT OOP r. ) CERTIORARI n _. vs. ) �-- C/1� m Q THE CITY OF IOWA CITY, IOWA, ) 0 ns y o Defendant. ) COMES NOW Plaintiff, Southgate Development Company, Inc. by and through its counsel, Phelan, Tucker, Mullen, Walker, Tucker & Gelman, L.L.P. and for this, its Petition for Writ of Certiorari, states as follows: 1. That this action is brought pursuant to the Iowa Rules of Civil Procedure, Rule 306, et seq. 2. That Plaintiff Southgate Development Company, Inc. is an Iowa corporation and the owner of 4.01 acres of real property located on Harlocke Street in Iowa City, Johnson County, Iowa and legally described as: Lot 25, Weeber's Third Addition to Iowa City, Iowa, in accordance with the plat recorded in Plat Book 9, at Page 14, of the Records of the Johnson County Recorder's Office. hereinafter the"Real Estate" 3. That Defendant is a municipal corporation organized pursuant to Iowa Code Chapter 372. That Defendant has the power to hear and decide zoning issues within the city limits of Iowa City, Iowa pursuant to the Iowa City Zoning Ordinance as enabled by the Municipal Zoning Act, Iowa Code Chapter 414. That Defendant's decisions regarding zoning matters is an exercise of a judicial function. 4. That Plaintiff proposes to construct three multi-family buildings containing 39 dwelling units on the Real Estate. 5. That Defendant's Sensitive Areas Ordinance, as set forth in §14-6K-1 of the Iowa City Zoning Ordinance, is applicable to Plaintiff's development on the Real Estate due solely to the presence of critical (25-39%) and protected (40%) slopes. 6. That pursuant to Defendant's Sensitive Areas Ordinance, a Sensitive Areas Development Plan and sensitive areas overlay rezoning is required for Plaintiff's development on the Real Estate due solely to the proposed placement of certain storm water control utilities within those critical and protected slopes. 7. That §14-6K-1(N) of the Iowa City Zoning Ordinance is not applicable to Plaintiff's development because Plaintiff's proposed development does not deviate or vary from Defendant's standard code requirements. 8. That Plaintiff's Sensitive Areas Development Plan met the requirements of §14- 6K-1 of the Iowa City Zoning Ordinance by delineating protected sensitive areas and associated buffers. 9. That Plaintiff's Sensitive Areas Development Plan provided for the placement of an essential utility, namely an underground storm sewer pipe and detention facility, in a protected sensitive area located in the northeast portion of the Real Estate. A storm sewer and detention facility as essential and required utilities, are explicitly authorized in §14-6K-1(E) of the Iowa City Zoning Ordinances as permitted use within a protected sensitive area when certain conditions are met. 10. That the design and proposed construction of a storm sewer pipe and storm water detention facility clearly demonstrated that they: 1) will not be detrimental to the functioning of sensitive areas or associated buffers; 2) will not pose a public safety hazard; and 3) will have minimal impact on the protected sensitive area and associated buffer, and thereby met all conditions for a permitted use within a protected sensitive area as allowed by §14-6K-1(E) of the Iowa City Zoning Ordinance. The City's professional staff responsible for reviewing the Plaintiff's Sensitive Areas Development Plan found full compliance with such conditions, and there was no credible evidence of any non-compliance with such conditions. 11. That Plaintiff's Sensitive Areas Development Plan was in full compliance with the design standards for regulated slopes as set forth in §14-6K-1(I)(4) of the Iowa City Zrgriing Ordinance. The City's professional staff responsible for review the Plaintiff's 'fa sitive greas Development Plan found full compliance and there was no credible evidencv7,....:_ianys�,,non- compliance. 0 _ m m 2 � Mc � O O 12. That the Plaintiff's Sensitive Areas Development Plan showed that the placement of a storm water control facilities within a sensitive area on the Real Estate will not undermine the stability of the protected slope as required by §14-6K-1(I) of the Iowa City Zoning Ordinance. The City's professional staff responsible for review the Plaintiff's Sensitive Areas Development Plan found full compliance and there was no credible evidence of any non-compliance. 13. That Defendant's Department of Planning and Community Development recommended approval of Plaintiffs request to rezone the Real Estate from RM-44, High Density Multi-Family Residential to OSA-44, Overlay Sensitive Areas High Density Multi-Family. See Staff Report, attached hereto as Exhibit "B" and incorporated herein by reference. 14. That the Iowa City Planning and Zoning Commission approved Plaintiff's rezoning request. See Minutes from Planning and Zoning Commission, attached hereto as Exhibit "C" and incorporated herein by reference. 15. That §14-6K-1(C)(c) of the Iowa City Zoning Ordinance requires the review and approval of a sensitive areas planned development to be in accordance with the Planned Development Housing Overlay Zone (OPDH) procedures, as specified in §14-6J-2D of the Iowa City Zoning Ordinance. 16. That §14-6U-6(D) of the Iowa City Zoning Ordinance requires the favorable vote of three-fourths (3/4) of the City Council if owners of twenty percent (20%) or more of the real property located within two hundred (200) feet of an area being rezoned submit a protest petition. Said protest petition was submitted with respect to Plaintiff's application for rezoning, triggering a super majority vote of Defendant's City Council. 17. That Mayor Ernie Lehman recused himself from the vote on Plaintiff's application because of a conflict of interest, resulting in the need for at least five (5) affirmative votes (3/4 vote of the six remaining City Councilors) to pass the requested rezoning. 18. That on April 17, 2001, at its regularly scheduled meeting, Defendant heard Plaintiff's request to rezone the Real Estate from RM-44 (High Density multi-family residential) to OSA-44 (Overlay Sensitive Areas High Density Multi-family). That by a vote of 4-2, Defendant's City Council was in favor of Plaintiffs rezoning request. However, for lack of the statutorily required super majority (3/4) vote, Plaintiff's Sensitive Areas Development Plan and request to rezone the Real Estate was denied. 19. That City councilmen Irvin Pfab ("Pfab") and Steven Kanner ("Kanner") were the two dissenting votes with respect to Plaintiff's request for rezoning. _ n� 20. That the votes of Councilmen Kanner and Pfab were illegal for (f9lloiKng reasons: n - - 0 1 3 m -12 ifi -R N d 0 A. There was no legal or factual basis for their respective negative votes and Councilmen Kanner and Pfab were each in error in finding Plaintiff's Sensitive Areas Development Plan was not in full compliance with all applicable provisions of the Sensitive Areas Ordinance. B. The reasons stated by Councilmen Kanner and Pfab respectively, for their negative votes were contrary to the legal criteria and advice provided to them by Defendant's City Attorney. See Memorandum from City Attorney, attached hereto as Exhibit "D" and incorporated herein by reference. C. Councilman Pfab's stated reason for denial, simply that Plaintiff's proposed development "was not in the public's interest" was in error, illegal and not in compliance with the laws of the City of Iowa City as embodied in the Sensitive Areas Ordinance nor with said Councilman's duty to follow and uphold the laws of the City of Iowa City. D. In support of his negative vote, Councilman Kanner cited and relied upon provisions of the Iowa City Zoning Ordinance inapplicable to the review of Defendant's Sensitive Areas Development Plan and as such his vote was in error, illegal and not in compliance with the laws of the City of Iowa City as embodied in the Sensitive Areas Ordinance nor with his duty to follow and uphold the laws of the City of Iowa City. E. There was neither relevant evidence nor legal authority to support the votes of either Councilman Kanner or Pfab. F. Neither Councilman Kanner nor Pfab cited any specific deficiency in Plaintiff's Sensitive Areas Development Plan as a reason for voting against the requested rezoning. G. There was no evidence offered nor cited by either Councilman Kanner or Pfab establishing that the storm sewer pipe and detention facility as designed by Plaintiff and shown on its Sensitive Areas Development Plan will be detrimental to the functioning of sensitive areas or buffers or will pose a safety hazard. Further, there was ample and sufficient evidence establishing that the storm sewer pipe and detention facility, as essential public utilities, were designed and would be constructed to minimize impact upon the affected sensitive areas. H. Defendant's denial of Plaintiff's rezoning request denied a5aintiffWqual protection under the law. DC7 m a � iN 3> o 0 WHEREFORE, Plaintiff prays: A. That the Court grant Plaintiff's Writ commanding the Defendant to certify to the Court, at a specified time and place, a transcript of so much of Defendant's records and proceedings as are complained of or pertinent herein, together with the facts of the case. B. That the Court set this matter for hearing as soon as reasonably possible. C. That the Court annul in part the decision of Defendant by annulling the illegal votes of Councilman Kanner and Pfab and allowing the Defendant's decision regarding Plaintiff's rezoning request to be controlled by a 75% super majority of the remaining legal votes of the members of Defendant's City Council. D. That in the alternative, that the Court issue a Writ of Mandamus commanding approval of Plaintiff's Sensitive Areas Development Plan and request for rezoning the Real Estate, as permitted by Rule 120 of the Iowa Rules of Civil Procedure. E. That the Court grant all other relief the Court deems proper, just and equitable in the premises. PHELAN, TUCKER, MULLEN, WALKER, TUCKER & GEL , L.L.P. dree By homas H. e elman #01742 �lO By I • • Michael J. Pugh #1481 al 321 E. Market Street P.O. Box 2150 Iowa City, IA 52244 o Phone: (319) 354-1104 FAX: (319) 354-6962 —n E-mail: gelman@ptmlaw.com ) < r F- E-mail: pugh@ptmlaw.com m rn ac Q ATTORNEYS FOR PLAINTIFF • h? C7 5 VERIFICATION STATE OF IOWA ) ) ss COUNTY OF JOHNSON ) I, Myles N. Braverman, after being first duly sworn, do depose and state that I am the President of Southgate Development Company Inc. the Plaintiff in the foregoing Petition for Writ of Certiorari, that said Petition was prepared at the corporation's request, that I have read the same and know the contents thereof and the statements contained therein are true and correct to the best of my knowledge and belief S i P- •• S - LOPMENT COMPANY, INC. By: �� ,__ Myr+:raverman, President Subscribed and sworn to before me by Myles N. Braverm. th. lith'. day of May, 2001. _di •% .. .1 Notary Public in and for the State of Iowa Jautup 3201_ N o D� at 71n 6m e—e _x > Q 0 v� IOWA gym.IA SE SI�'IVE AREAS DEVELOPMENT PLAN •° t ,+� • °. 47,r0 I0 WEEBER'S THIRD ADDITION ^\ —1 `� •**" I --J., -- = t � �• �. = moi/ IIWA CITY,- IO-WA �._� .�Aa“.ur� . _as5;.. • j ' ' �r '�77 �rs'' /'�` , PLAT PREPARED BY- OWNER• A ',ay..i + = __ e /�. r` - NMS CONSULTANTS INC. SOUTHC ATE DEVELOPMENT CO. f /r a t{ -�„�I _ — '1817 SOUTH GILBERT ST. 755 MORMON TREK BLVD �� + (� ■ \� r �� w��•- �i�(�l__--MOXA CITY, IA 52240 IOWA CITY. 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I ' f .0.atiA Ill 00111004 von xi"A.•.LW.,“1a1 saamn •#. • e�rl �d n 1 ro 4a..._• K(+ll,.e 91 ,',0+404 riaai'•,.•as.a..m z I . ;.,b. 4444 i�i.'Je - ; aef ,...�,0X111r 31.10,..91.3 I t . s �.. Aget •� �fG/i 4a�./e.�“.wnoeess“�e. T...or .u"�..o.om C. t ,// ; `��Ila; R I 1 „e,a“A.a axis.aw.a . m I�,o,, C , ,q`��� 111i: -7F �I, 1 a,,,e> •RAS„ PROPOSED 'ARK yi#,41,Yo, �y�' •�I�> ' /1 w.s sKu KO..Tr ''�� �• r 1 �,i'm'�K`w°i�'n-z 1•E.s+.L7 40:K<s r“oom a J��(. 5 t /9.8”, YY aoa Q` '�� i• 'i1 "Z.': ..w..a o -,-U KAtS(4 9 III 1 / t �� N T ;#,..4 0 � � I S MIS ro R orae-u.,.Qtf Il,q N ww.. T1 ,' #, 9 ►� d� 1 � L.I�+ 1 041¢,m Mu.-1.»K“E,Ran MIS.'a(1 — I I / �A��tV7' _ �•� 'f,11•1:=7:‘":=00.1.11, lrsrt“,s.•u �om�“4 r 4.M.som rwa c [ +CI ,t� /i O�,r. 1 �� L �� ''1 ' wosc.r..c L. qr %.�''' , w a7 ;/' ItY✓]�` 1• a rauM .0,....„1.1.11/7:01.0•0501,.. .14..40 w13 o �. SIA �� L `w�0'0O1 osanm a 14 O' �„ A?� ! S4'.'0. m,001.10:,0. Hca.��n WM.1rEroro a Fa' it ° I /'r/ o,, ♦ / / L____,,,,,�. Y S4(:0000 .“ .w.sA1 .. / �x s c....A:O.s*c"'a.s.4u"'•',e rc,..ortcrto. x.ao..a al p#I/�/�rr"� •' / •/ /, �,• °s�ci EXHIBIT "B" STAFF REPORT 0 To: Planning & Zoning Commission Prepared by: Robert Miklo 5 C7 v, f rd 0 in Item: REZ01 0001, Weeber 3 Addition Date: February 1, 2001 GENERAL INFORMATION: o� N � a Applicant: Southgate Development Requested Action: Zone designation change from RM-44 to OSA-44 To allow approval of a Sensitive Areas Purpose: Development Plan for three multi-family buildings containing 39-dwelling units. East of Harrlocke Street Location: Size: 4.01 acres RM-44 Undeveloped:Existing Land Use and Zoning: Surrounding Land Use and Zoning: North: Residential, RM-44East: Residential, RM-44 South: Residential, RM-44 West: Residential, RM-44 Comprehensive Plan: Residential 2-8 dwelling units per acre File Date: January 11, 2001 45-day Limitation Period: February 22, 2001 BACKGROUND.INFORMATION: The applicant, Southgate Development has requested approval of a Sensitive Areas Development Plan for a 4.01-acre property located on the east side of Harrlocke Street. The Sensitive Areas Development Plan is reged for any development on this property due to the slopes. The applicant proposes to build two presence of critical (25-39%) and protected (40%) twelve-unit apartment buildings and one 15-unit apartment building. The property is currently zoned RM-44, High Density Multi-Family. The property has had this designation since the adoption of 1983the zoning lealdinance. The lows multi-family ious 44 untsdesination per of R-3A allowed a similar density. Thezone acre. The actual density of the proposed development is 9.7 units per acre, well below what the underlying zoning permits. There were two attempts to downzoelnhi1984 PeYdowners fromdjacent ophertles from neighborhood totohe lower residential zoning classification. property west initiated a rezoning to RS-5, Low Density Single-Family. This application was not the parking areas are proposed on the flatter areas adjacent to Harrlocke Street. The third building is proposed in the southeastern portion of the property. To allow a level site for the third building grading is proposed adjacent to a critical slope area. This is permitted by the Sensitive Areas Ordinance. This will require the removal of trees in the area of and adjacent to apply to of the e d w 15-unit teed lto be retained. The plan. If the woodland provisions provides dforr the retention is of over 50erty, % of the wooded areas would wooded area. A storm water detention facility in the northeast portion of the tract will require some disturbance to allow the installation of piping. This is permitted by the Sensitive Areas Ordinance provided the disturbance is kept to the minimum required to install the facility. Storm water calculations and a grading plan must be submitted to allow an evaluation of this proposal. The Office of the State Archaeologist has indicated that there may be an archaeological site near the southern property line. The actual location of the site may be on this or the Ruppert property to the south. The Sensitive Areas Ordinance provides the State Archaeologist the opportunity to study the site prior to development activity. We have asked the State to clarify the location of the site in relationship to the property line and to determine if further study is necessary in this case. Traffic: The previous proposals to downzone this property were based on concerns regarding the amount of traffic that would be directed to Harrlocke and Weeber streets. Theoretically the RM-44 zoning regulations would allow as many as 176 dwelling units built on this propertyThis would result in over 1000 vehicle tripper raffic fbased on an rom developmetnstnof the ate of 39 unitssips pg day �li d 1234 per multi-family dwelling unit. EstimatedD -n vehicle trips day. n us m Development Plan Design: As discussed the plan includes two buil Ingon Hi� pr ideke Streem At and a third building in the southeastern corner of the property. lhe s access to the parking area and d adde ress.d Otherwise willding, tsbe locationsgnated as a behind the other bdt W�ingsa�ould the building will have a clear ad make it difficult to find from Harrlodcs mi a�eint scale to'ons of the multi-family family buildingse three ' located to the are attaned. Each will be three stories high an east and north in this neighborhood. inance, cation Neighborhood Open Space: Accordingeesto he in Iie'ghoforhood land wopbe required en space dfor developmlent of of 33,101 square feet of open spaceo this property. Given the rugged topography of the open space areas shown on the plan, it is unlikely that it is suitable for active neighborhoodhRecreaonpen spce Commassiongfor thei by nconsideration and for the ordinance. This plan has been referred to the Parks a recommendation regarding wheiner ieuthis ofproperty en space. The Parks andspace Recreasuitable tio�Commission's o whether the fee should be paid P recommendation should be available at the Planning and Zoning Commission's February 15 meeting. in the northeast Storm Water Management: A storm ons mustbe waterdetention soubm submitted to theubac Works D partme�t for of the property. Storm water Calc review and approval. Sewer and Water Fees: The property is subject to a $395 per acre water tap-on fee. There are no sanitary sewer tap-on fees in the subject area. Although the Comprehensive Plan designates this development as appropriate for Summary: 9 2-8 residential dwelling units per acre, the current zoning allows up to 44 units per acs . CITY OF IOWA CITY Q . • 7).ta r----------- WOODSIDE ` PLACE \ "I'll - ■ � f rr j R M OAKCREST ST i-'\ t . RM 20' 1 i -I 1 =I I • ROOSEVELT p a R6 I:) i2 1I > SCHOOL ii =' RM 44 LI I W 1,1)\ J O Z J °w° w U 1 a . o I C - OCIJTOrd � I � I 1 iHARRI ;ECII RM > .. / \ — i r ORCHARD wfEBER - 1 i ___\ 00 3 _.... . . ..... ,„ ,, . 4 \ 1 i _U RM 44 II 71 ILI ICII IJlTONf11S5 CI R I '�'� �'�I I 110 .0 itaa___________ v) a L'j a ______...,... 41 a =z1 1 ova 1001 1 Wd S OCATION: Lot 25, Weeber's Third AdditioraTlId REZ01 -00001 SITE L . . FILED 2001 MAY 15 PH 12: 0 i, ..)1 .tn . 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J � ioi' .� a. r.u �.�.1':�. ■.�..■ 11:ri�-�.��'si:.i:..w. ��iii:•r...w.N• ��.:'.�:'Yid` _ �i:w'•w•oi'w. rw.v. •■S■r\ '....7.::. �.a w.. .�w�.irw..�.�Jlr:..�. ?v:F.i_e�:iiiil'�i: �.• - .. .rte Z :���}.�:'���':i.wr.. .r. _-����� ■w wlwi:w.:...�...4w7.■.r...�._�.g-.-..-w.nwr.w�Y�r\ , 121.:i�.}.r��:�Yr ..in�Y���w.Yw.�. r..�r� �.�• �. NC 114 la =roll rr r.�~ Y.•.��...11......r• . . 1 roll..�_r._ .......�.._42_.._ _..5:��:5 .t....7:: =':5••��►�1�= r ( 1r \\\''*,.. . - ,, ,, i(-NI . roll. ....I EXHIBIT "C" MINUTESn PLANNING AND ZONING COMMISSION 1 -1t. D D D FEBRUARY 15, 2001 — 7:30 P.M. CIVIC CENTER COUNCIL CHAMBERS • MEMBERS PRESENT: Ann Bovbjerg, Jerry Hansen, Marilyn Schintler, Dean Shannon, Pam Ehrhardt MEMBERS ABSENT: Benjamin Chait STAFF PRESENT: Mitch Behr, Bob Miklo, Sarah Holecek OTHERS PRESENT: Glenn Siders, Michael Gunn, Cecile Kuenzli, Don Lacina, Klaus Bielefeldt, Lorraine Bowans, Derrick Abromeit, Ginny Blair, Paul Kinney, J. Knabe, Cynthia Pickett, William Knabe, Judith•Klink, Tom Gelman, Georgeann Chavell, Jeffrey Gauthier, Ruth Baker, Ernie Cox, Melissa Ruhlow, Bill Graf, Cherice Wyckoff, Stephen Tully, Paula Ford, Dennis Dykstra RECOMMENDATIONS TO COUNCIL: Recommended approval by a vote of 4-1 (Shannon voting no), a rezoning to establish the Governor- Lucas-Bowery Street Conservation District, a Conservation Overlay Zone, located generally south of Burlington Street along Governor and Lucas Streets. Recommended approval, by a vote of 3-2 (Ehrhardt and Hansen voting no), a rezoning from High Density Multi-family Residential RM-44, to Sensitive Areas Overlay, OSA-44, on 4.01 acres to allow 39 dwellings in 3 buildings located on the east side of Harlocke Street, subject to Public Works approval of a grading and erosion control plan prior to Council Consideration and verification from the State Archeologist that there is no archeological site that requires further study per the Sensitive Areas Ordinance. Recommended approval, by a vote of 5-0, a request for final plat approval of Prairie View Estates Part IV, a 30.86 acre, 21-lot residential subdivision with two outlots be approved, subject to approval of legal papers and construction plans prior to City Council consideration. Schintler seconded the motion. Recommended acceptance, by a vote of 5-0, of the Development Regulations Analysis report presented by Duncan and Associates. " CALL TO ORDER: ne Chairperson Bovbjerg called the meeting to order at 7:35 p.m. 0 PUBLIC DISCUSSION OF ANY ITEM NOT ON THE AGENDA: r cnrn tt----�� There was none. 33 o� N ANNOUNCEMENT OF VACANCIES ON CITY BOARDS AND COMMISSIONS: Bovbjerg said there is a list available on the decor onby bulletinincluboard, the Phe said the City ng Zoning Coxmiss o that the public to help the City Council has 2 openings; soon to be three. ZONING/DEVELOPMENT ITEMS: Discussion of a rezoning to establish the Governor-Lucas-Bowery Street Conservation District, a Conservation Overlay Zone, located generally south of Burlington Street along Governor and Lucas Streets. Miklo said the Historic Preservation Commission has nominated this area for consideration as a cording to Conservation Distrwould allow ConservationthHistoric Prlstrict is an overlay zone eservation Commission ocrev review exterior or a terat onse City's gto buildings f adopted it wbuid that require a building permit. It would not affect the interior of buildings or activities that don't regouiree�a buildingy wnes permit. Theconsideration sideration of didion e areayasfahe area after ConservationrDistictgTheuests intentfrom area of a Conservation owners asking for District is to preserve the physical appearance of the neighborhood as it is today. It is similar to a Historic District but the standards of review for the alterations of buildings is not as strict. The Planning and Zoning nverrl vozone socons stent withe he Comprehens veDPlan.tThe tComprehe sive Plan Planning and Zoning Commissi, Minutes February 15, 2001 Page 2 does propose the preservation and conservation of older Iowa City neighborhoods and contemplates the use of tools such as historic district overlay zones and conservation overlay zones to achieve this objective. The Plan also recognizes that these areas often provide affordable housing. The plan also encourages the use of other zoning tools such as the downzoning in this area from medium density to a conservation residential zone. The plan also encourages the use of conservation overlay zones and historic districts in these particular areas. Staff finds that the proposed Conservation District is in compliance with the Comprehensive Plan and furthers the plan's objective of conserving older Iowa City neighborhoods. Staff recommends the approval of the Governor/Lucas/Bowery Street Conservation District. Miklo said the Commission was given copies of e-mails and letters in support of the'Conservation District. There was also a phone call from Ruth Switzer, a resident of Lucas Street, supporting the Conservation District. Bovbjerg confirmed that the Planning and Zoning Commission's role is to decide if this proposal is consistent with the Comprehensive Plan. She asked if this is technically a rezoning and requires two meeting or if it could be decided on tonight. Miklo said it is technically a rezoning and it is the Commission's policy to look at it for two meetings but not a requirement. ra Bovbjerg asked if area neighbors had been notified. D— Miklo said all property owners within 300 feet were notified of this meeting by mail. 0� Public discussion open: ..-{C7 Michael Gunn, 1011 Sheridan Avenue chair of the Iowa City Historic Preservation Commissi�said�e m would discuss seven main issues. He said historic preservation has been successful CDoteetlng neighborhood character and enhancing property values in Iowa City and many other citie* r and hhe country. The design review process is a process that affects property owners only wh4'rt signifcant exterior changes are about to take place. For historic districts in Iowa City, this occurs about once e ry 15 years. Density is rarely affected by design review. When density is affected it is modest. Limiting the size by a setback requirement is one example of this. Retaining the architectural character is the aim of design review. In an effort to make the Historic Preservation Commissions decision-making process more open and consistent they have developed the Historic Preservation Handbook to aid architects, builders and property owners. It contains guidelines that pertain to all districts and will contain strict guidelines as they are developed. A portion of the nomination before you is that individual district guideline. The handbook applies to single-family, duplex, multi-family property. This reflects the diversity of historic property in Iowa City. He said there are three differences between Historic and Conservation Districts. The first is that the criteria for nomination are somewhat different. The details of that are probably not as important as the other two differences. The guidelines are more lenient for Conservation Districts. This applies to materials for foundation, siding, dormer sizes and addition materials. Also, thereview b i wstprffocess tss is more streamlined for Conservation Districts. A number of these things can be approvedY chair of the Commission rather than going before the full Commission. He said there are two issues that are probably more controversial than anything else. One is that demolition is not allowed unless the structure is deemed irretrievable. It is felt by the Historic Commission that if this nomination goes through and the districts are preserved that we ought not allow the demolition of sound property. The other thing, is that vinyl siding is allowed for a Conservation District on non-contributing structures and new structures but not on contributing structures in Conservation Districts. It is not allowed at all in Historic Districts. He said the Commission feels strongly that contributing structures should not be wrapped in vinyl siding, which detracts from the appearance, detail and color which is important in Historic Districts. He said in closing, they are going to meet with people in a number of formats to discuss these things if ere are a nhling regulations He d fferentls is a complex issue and ord ordinances and any way they hcan help explain ber of that they gwilltions and be happy interacting by to do. Ehrhardt said, as she She said(they have not seenthe specific ir chrge is to look at ther d distris ct guidellanesy �ne is consistent with the Comprehensive Plan. • Planning and Zoning Commissit, Minutes February 15, 2001 Page 3 Gunn said the specific guidelines are in the nomination, Exhibit D. Ehrhardt asked if they were concerned with those at this point. Miklo said if they have concerns, they should express those to the Historic Commission. Hansen asked in terms of demolition, what are the criteria used to judge a building irretrievable. Gunn said it would have to be structurally unsound. Hansen said that would be a matter of finance; you could do anything if you had enough money. He asked if there was a dollar amount. Gunn said no they didn't have any more detail than irretrievable. He said it's not something they can spell out in detail because they have to look at a whole host of properties; not only single-family and duplex but also multi-family structures and big commercial structures. He said it's hard to decide that kind of thing ahead of time. Shannon asked where the appeal process go if the property owner doesn't agree with their assessment. Gunn said it would go straight to the Council. Schintler asked Gunn if he thought because of the process to do a repair or anything that that might stop people from proceeding. Gunn said they haven't seen that has happened in historic districts. Ehrhardt said as she understands, if a lot of these changes can be approved by staff or the chair; that would speed things up. Gunn said even for things that come before the full Commission they encourage people to submit plans two weeks before the meeting. He said two weeks is the most they could delay a project before it comes before the Commission. "CI J Bovbjerg clarified that this is the first Conservation District that they've looked at and so theRrvatte district guidelines (Exhibit D)would become part of the Historic District Handbook. az >1--•-• ,,,n 0 –4 Gunn said that was correct. --a n cn F- 4-<'— M Cecile Kuenzli, 705 South Summit, said she is there as president of the Longfellow rhati b d 0 PP Association to express enthusiasm and support for a Conservation District overlay. She a applauds the considerably work that Gunn and the Commission has put into the report tththae d wn ings t Mfri there this evening. She said although the Planning and Zoning Commission appy nEbf this area to RNC-12 last summer, that decision only affected the density in this area. She said the conservation overlay is a necessary counterpart because it addresses how a structure in this area will look. People who live in these older neighborhoods near downtown feel these neighborhoods feel they have intrinsic historic and architectural worth and as such are an asset to the entire community. Where new construction usually and especially duplexes become necessary in old areas or when existing structures such as in single family homes require exterior changes, the conservation overlay will ensure that these changes will not produce a visual shock with the surroundings. Rather they will result in a harmonious renewal that will benefit the property owner and the architectural character of the neighborhood. Only the conservation overlay can do this and they look forward to its implementation. Don Lacina, 5146 Lower West Branch Road, said he is a property owner in the area being discussed. He said he's opposed and that is appears to him that this just adds another level of bureaucracy if he wants to do some work on his house. He said you have housing inspectors who are doing a super job, building permits that will govern the building of new buildings and he gets nervous when people talk about how something is going to look. He said how do you define how something is going to look. If this goes through and he wants to work on his house, he has to appeal to a board of people that he has no vote for, no control over how they get their job or keep their job and yet they can come out and tell him he can't put ions in place ht now vinyl sidingd all weshavvese.to doe is edwe have nforce them. He said we have aline historical aree a and durngto ethese a time thinns and all Planning and Zoning Commiss. Minutes February 15, 2001 Page 4 when Kirkwood Community College is growing as fast as it is and the University is growing, we need housing for students. He said he's opposed to downzoning. He said some time ago, it was felt that Iowa City adopted a no growth policy. Shortly after that our malls started floundering, businesses started moving out of town so he thinks they better take care of the students. He said every time you downzone, as a landlord he looks at this two ways. He doesn't like another level of bureaucracy telling him what he can and can't do with his property. He said every time there is a downzoning he raises his rent. He said there was an article in the Iowa City paper about a month ago that the students are already starting to look to Coralville for places to live because of the cost of living in Iowa City. He said the way you lower a cost base is to build the base that it services. The more people you have paying utilities, the lower your utilities can be. He said he asks the Commission to consider the renters because landlords will pass added costs to include jerking around to add another level of bureaucracy to try to fix up his house. Bovbjerg said what is before them does not affect density as Gunn stated but does affect the design and how something looks. Lacina asked if he has the footage and the other requirements to build a 12-plex on his property, a tornado comes through and takes his house, will he be able to build a 12-plex under the new zoning. Miklo said it would depend on what's there now. The conservation overlay would not affect the density; that would be the underlying zone. He said most of this area is zoned RNC-12 which means new construction is limited to single family and duplex unless a legal grandfathered use currently exists on the property. So if there's a 12-plex that conforms with the previous zoning, then yes it could be rebuilt. Klaus Bielefeldt, 922 Bowery St., said he likes the idea of an older home being preserved in a neighborhood that functions as an entity. He said he appreciates that there are other people and other needs but it comes to a question of quality of life and quality of community and having all the needs met. He said it's important to think of low cost rent for the students, it's important to think of familiaa in neighborhoods who are not transient and maintain a character that is unique rather thattuburbiia or strip-like character that can be seen in other areas of a neighboring town. He said this is hingikhat maintains important historic aspects and maintains something for those that live there. Hegtrevpro$,4bly also provides enough opportunity for students to live in an area that is diverse with relaticOly ffordable rent. o cit Mr Lorraine Bowans, 510 South Governor, said they bought their house in 1987 when tf� a —et Lorraine depressed area. She said the nice thing back then is that they paid about $1400/year in t ecar� a it was a depressed area. She said they did a lot of renovations to their house. It was a ren proper8that sat on the market for a year because it was run down. She said they got a very good deal ori—their property and put a lot of sweat equity into it. She said they now have one of the nicest properties on the street and won a historic preservation award. She said she knows people don't want to jump through any more hoops that they absolutely have to, but she looks at the property values. She looks at her property as her retirement investment and wants to make sure it sustains the best possible value. She said they've had offers for their home in the $100,000 range when they paid $71,000. She said the property next to them which is the largest lot in the whole area went on the market in 1988, stayed on the market for a year, sold for about $70,000 and last year it listed for $175,000 and sold in a week. She said this is an area that had been good, went down and has come back up. She said the people who live there and own property there have done an excellent job. The landlords and owners have come together and brought this neighborhood back. There are still some properties that need improvement but 80% have been brought back to their historical appearance and she thinks that is what has brought the property values up. She said she hopes this goes through. It has been long waited and research has been done, the City has invested dollars in it, so let's go for it. Derrick Abromeit, 625 South Governor, said he's had the opportunity to speak to the Commission on several occasions and many of the same issues keep coming up. He said he's there with many of his neighbors. He appreciates what the Commission did for his property in closing the alley that went behind his house several years ago. He said he has a really nice neighborhood, there are a lot more kids there than when they moved in and his property values are increasing. He said the neighborhood is still full of college kids and he likes that. He said they have families like his and they have old houses that are a pain and this will make it a bit more of a hassle. He said he doesn't have a garage so he'll have to get a building permit for the garage and it may be a hassle because the garage is going to have to look a certain way and that will be a sacrifice he will have to make. He said he feels that that's part of the deal. He said he loves many of the characteristics of his neighborhood and it's worth the sacrifices. • Planning and Zoning Commissic, ,,1inutes February 15, 2001 Page 5 Lacina said that both of the folks who have spoken are his neighbors and they both commented on how the neighborhood has been built up and fixed up without any historical designation. He said if you let people own property, most of us are proud of our property. He bought one of the rundown houses that was spoken of and he would like to think it is one of the nicest houses in the neighborhood. He said his point is, if it's not broke don't fix it. Ginny Blair, 650 South Governor, said her address would make her Lacina's neighbor if he lived on South Governor, but he lives on Lower West Branch Road. She owns property and lives in it and she would really like the Commission to listen to the people who own property and live in it and would like to stay in the neighborhood and not worry about how many students they can cram in and how little they can spend to make it look nice from the street. Paul Kinney, 645 South Governor, said so many of the people that want to turn this into student apartments are landlords and don't live there. He said he doesn't think it's too much to ask if this is a business for them and they're going to make money on it that they try to get along with the neighbors that do live there and try to contribute to making that neighborhood as attractive as possible. Bowans said most of the people are maintaining their property and doing a good job of it and maintaining their rental properties, but one thing that is happening in the last five years; another house went down on Dodge Street to make way for a bigger more dense building. Another property went down on South Lucas and if you drive down to the dead-end part of South Lucas there is a grey vinyl steep pointed roof thing that does not blend in with the neighborhood. She said this is the main concern with the Conservation District. She said she's heard a developer wants to buy her neighbor's property just to knock it down and build something bigger. She wants to protect the old homes and make the neighborhood look like a neighborhood. She said they have a lot of wonderful renters in the neighborhood and they live there because they want to live in a neighborhood and not in student housing. She said to keep this flavor would benefit even the landlords because it keeps long term tenants and keeps the value up. She said when you have long-term tenants you don't have to make as many repairs. She said the key issue although the most controversial is to keep these old homes that are well built from destruction. Ehrhardt said she first heard about Conservation Districts at a conference and it sounded like you c,Qyld go beyond the restrictionsof the building permits such as setbacks. She asked if itw trruue tt a Conservation District designation nation doesn't just add restrictions but allows some flexibility t D beand building permit regulations. xvb 0 Gunn said a individual district could write their own code that would allow some flexibilityexiling f code. He said it's a good point that it's not just adding bureaucracy but can add some flex l Ithq�h fTI not in all cases. 777 N Bovbjerg said someone had mentioned buildinga and not t beingg lestructures.to use inyl but cShe asked to had referred to existing and new, and contributing and clarify. Gunn said as they have written the guidelines, in a Conservation District they are allowing vinyl siding on non-contributing structures, which make up about 30 percent. It is allowable on new structures. It is restricted on historic properties that are significant and of the proper time period and contribute to the theme. He added that in this area there are a number of rental properties. He said rental property and commercial property is part of the historic fabric of Iowa City and they don't look at them differently. Public discussion closed. MOTION: Ehrhardt moved to approve a rezoning to establish the Governor-Lucas-Bowery Street Conservation District, a CConservation st a tstionnOverlaysen Zone, located the motion. generally south of Burlington Street along Governorand Ehrhardt said she's very much in favor of the overlay. She said if they look strictly whether it's consistent with the Comprehensive Plan, the Comprehensive Plan gives them a tool they can use to protect older neighborhoods and this is a very effective tool. She said Lacina's comments about getting a building permit has nothing to dwith keephow the the chpropertyaracter the will neighborhood.kinthe end. She said this spells out how the end product will look and help • Planning and Zoning Commissic,,, Minutes February 15, 2001 Page 6 Hansen said he's in favor of it and it's been a long time coming. He said he slowly watched the older housing stock erode in our community. He thinks it is the older housing stock that gives the town character. He said he wants to see diversity in neighborhoods and diversity in density but he also wants to see diversity in character; not just new houses and apartment buildings. He wants to see the old houses remain so he'll be voting in favor. Schintler said she's in favor of it because she wants to see the houses preserved. She said her only concern is it may make some of the houses unaffordable. Shannon said he can understand what people want to do to improve their property and last year he voted down the downzoning because he wasn't sure that's the best thing to do when everything changes and you're locking yourself into a land use that when we're gone may not be the proper use. He said he supports people for trying to do something with their neighborhood flavor but at the same time he's opposed to another layer of government. He said he's always been against more hoops to jump through. Bovbjerg said she will be in favor of this because it goes along with the Comprehensive Plan and is flexible and as the conservation district guidelines may be flexible so too are the overlay zonings and other kinds of zonings. She said it's a benefit to the neighborhood and a benefit to property owners who use their property for rental because stability benefits everyone. 0 4 The motion carried on a vote of 4-1 (Shannon voting no). >(] mic REZ01-0001. Discussion of a rezoning from High Density Multi-family Residential, RM-44,05 nsittfe Areas Overlay, OSA-44, on 4.01 acres to allow 39 dwellings in 3 buildings located on th sidaf 1� Harlocke Street. --��` 1 Miklo said they have received a revised plan and he highlighted the changes since the last g. 0 The entrance has eeen chand to a. The gee maaslow hal has ac�epted th saccess de�gn and s gned off on it r emergency vehicles. This also allo�3for less paving in hat a There is a note on the plan that outlines what would happen to the property in any future development to the grading and tree removal in the two protected slope areas. This is in lieu of a conservation easement and staff finds that acceptable. The Recreation Commission met and reviewed this property and decided they would like dedication of land. The ordinance requires the dedication of approximately 33,000 square feet. The revised plan shows approximately 39,000 square feet. There is a flat area available for active play area and the Parks and Recreation Commission may put some equipment there sometime in the future. It also includes a protected slope and buffer area some critical slope and a section where the Parks and Recreation Commission thought it would be possible to put a trail to the east. The State Archeologist has sent a letter and they would like to investigate the site to determine if the artifacts found there have any relationship to a burial ground. If not, it's unlikely they would do any further the snow has melted investigation. They with ycannot make a the property ownerfora field tv visit as sloop as the snow is off the site. they have made arrangeme Miklo said a memo from the Transportation Planner is provided regarding traffic in the area. He said staff is recommending approval subject to the grading and erosion control ordinance being approved by the Public Works Department prior to this being reviewed by Council and subject to the State Archeologist determining whether further investigation is needed on this property. Bovbjerg asked if the area outlined in yellow on the overhead is what is being dedicated as open space. Miklo said yes. Bovbjerg asked if that includes the area that was being discussed for a conservation easement. Miklo pointed out the protected slope and buffer area and said it does include that. He said there are a couple of other protected slopes and buffers in the area. Planning and Zoning Commiss_ . Minutes February 15, 2001 Page 7 Bovbjerg asked if this note on the plan does the same thing that an easement would do. She said they were very concerned that this need for protection not be lost. Miklo said it is similar in that it will be a recorded document and notify future property owners what the requirements are in terms of the sensitive areas on the site and what their obligations are. Bovbjerg asked if play equipment were brought in, whoever does it would be told not to encroach upon the sensitive areas. Miklo said yes. Holocek said what the note does is put future property owners on notice of the restrictions in regard to the use of the protected slopes and that area. So what that note does is put people on notice that there are certain activities that are restricted in that protected slope and buffer area. Ehrhardt asked what would be done to address the problem of traffic onto Benton from Weeber. She asked if there might be lights put there. Miklo said that is not being proposed with this development. He said since it is a local street it would not normally be considered for lights. ra 0 Ehrhardt asked if the storm water calculations would be done. o D- MC Miklo said the Public Works Department has reviewed those and is satisfied at this point. m Public discussion open: rn -11 rn Glenn Siders, PO Box 1907, Iowa City, Iowa, with Southgate Development, the applicant f®tY prd�ct 0 before the Commission. they He said also represent the owners of the property. He said th have tion working on this project for about nine months. He said they have made numerous chang to thiscplat and each change has been made uncontested by the development company. The changes have been made at the request of staff to make this development appropriate for the neighborhood. He believes what is in front of the Commission is a good development as a result of all the requests by staff and the Commission. He said they are well beneath the density requirements on this property even with the dedication of the park land. They still have the ability to erect over 130 units; they are proposing 39. They are within the traffic limitations for a secondary access. They have gone down to minute details of relocating dumpster locations. They have been conscious along with staff to provide minimum disturbance to this property in the locations of the buildings. They intend on not removing any of the wooded area with the exception of what's needed to put in the storm water retention system. He said that is why they are before the Commission. He said it is his belief that none of the other issues that he mentioned are germane to the issue; they are before the Commission because it was a requirement that they provide storm water detention, which is in a sensitive area. They are disrupting some of that sensitive area to accommodate the City's requirement, therefore they need to approach the Commission with a sensitive areas plan and that's what they have done. He said it is the Commission's position to decide if they are within the bounds of the work that's going to happen in the sensitive area and approve their application on that. He said they were conscience that there would be neighborhood opposition to this project and they kept that in mind in the design of this project. He said last meeting the Commission heard comments about the enjoyable open space that was provided with no development there. It was even at times referred to as public space. It's not public space; it's private property. They are concerned about the misnomer of public space; they have concerns about liability of using private property without their consent. He said he was happy that the Parks and Recreation Commission decided that they actually wanted some park space. It is his belief that if they would have approached the Parks and Recreation Commission, it would not have been decided for them to take the space. They probably would have decided for Southgate to pay them instead of dedicate the space but because of the neighborhood input they dedicated land. He said now they have dedicated about 25% of their property to that open space. He said again the reason they are there; it's not a rezoning request other than it's an overlay zone for sensitive areas. They would appreciate it if the Planning and Zoning Commission would keep that in mind during the discussions of this project. Shannon said there was concern voiced that there would be more runoff with the water retention in parking lots. He asked if that would be a problem. • Planning and Zoning Commissi..., Minutes February 15, 2001 Page 8 Siders said there would be more water runoff on more parking space with less absorption and a larger area to drain. But he said the rate of release of that detained water will be much slower than what currently exists. He said there will be less problem downstream. He said it's a deep hole and will retain a lot of water. Bovbjerg asked if it leaves the basin and goes into a pipe. Siders said at the east end of the hole they are going to build a concrete wall; a dam so to speak. At the base of the wall will be a hole to outlet the water. Thirty feet to the east of there is the existing storm sewer pipe. Bovbjerg asked if it goes through a hole into surface drainage. Siders said yes. Bovbjerg asked if there was dirt there or riff raff. She said she's very concerned about concentrated water hitting dirt. Siders said he would assume that there is some riff raff with the construction of the storm pipe. The water will continue to run in the path that it has for years and years; they are not changing that path or disturbing that ground. They are just releasing it at a slower rate. He said there will be a lesser percent of disturbance than there is now. Bovbjerg asked if there's any recourse for an adjacent property owner if there were damage due to runoff. Siders said they have discussed that with the adjacent property owners and they're aware of what is being done. The engineers are aware of what's being done and have approved it. They haven't approved the grading plan because they haven't done that yet because they keep shifting things around. Holocek asked if Bovbjerg was asking about recourse for a downstream property owner having water dumped on their property from an upstream property. Bovbjerg said yes or prevention. • Holocek said there is state law a statutory remedy for a property owner if a established stream is changed so that the downstream neighbor results in damage. Also the Iowa City storm water management ordinance actually requires a very slow release rate from basins. She said when Siders said that you would have the release rate slowed down by the basin and the mechanism, which it's flowing. Siders said Schnittjer reminded him that along with the hole in the wall, there is a calming device so the water will not gush out. Bovbjerg asked if the recourse of a neighbor would be through the Council or the courts. 0 c=kv Holecek said ultimately through the courts but often times you find the property owners rem • osi situations amongst themselves. 0 Judith Knabe, 1101 Weeber Circle, relinquished her time to her husband, William. rn - _ Cynthia Picket, 1125 Weeber Circle, dedicated her five minutes to William Knabe. N 0 William Knabe, 1101 Weeber Circle, said he is speaking as an area property owner and as reprerentative of Harlocke-Weeber Neighborhood Association. He thanked the Commission for giving the neighborhood the opportunity to express their views. They are there to ask the Commission to not approve application for Sensitive Areas Overlay Zoning. He said they do see this as a rezoning. He said they contend that the proposed development violates the spirit and intent of the City's Sensitive Areas Ordinance and therefore be rejected. He said at the informal meeting on February 12, 2001 the Commission indicated that a vote would be taken this evening. At that point the Assistant City Attorney stated that she wanted to remind the Commission that this application isn't really an issue of density. Immediately the question came to his mind: what is she saying. He said most if not all of the problems they have expressed about this rezoning Planning and Zoning Commissi...i Minutes February 15, 2001 Page 9 and the plans for development of this property are related to the impact of population density. He said was she saying that their concerns about the impact on the safety of their children shouldn't concern the Commission because it's not really about density. Was she saying that cutting or felling several hundred trees in the northeast ravine shouldn't concern the Commission because density is not really the issue. Was she saying that this development will place additional burden on an already weak water and sewage infrastructure in this area should not concern the Commission because it's not really about density. Or the fact that this area already saturated with over 500 apartment units and thousands of square feet of asphalt and concrete and sorely needs more park and open space shouldn't concern the Commission because density is not the issue. Or the fact that previous Planning and Commissions saw the need for and recommended downgrading any development of this property should not concern the Commission because density is not really the issue. Or the fact that this development will at least double the number of vehicles from 169 trips to over 500 on streets that are 3 feet short of the standard street width should not concern the Commission because density is not the issue. Or that such an increase in traffic raises neighborhood anxiety about increases in pollution and noise, pedestrian and fire safety should not concern the Commission because density is not the issue. Or the fact that residents and property owners in the Benton Manor area are concerned about flooding of their property due to a major increase in the amount of water that will be directed toward them as a result of this development should not concern the Commission because density is not the issue. Or finally, the fact that the proposed development will have a permanent adverse affect on the quality of life in the Weeber-Harlocke neighborhood and the adjacent Benton Manor area should not concern the Commission because density is not really the issue. Knabe said he does not intend to interpret what was meant by a single statement. He has nothing but genuine appreciation and respect for Holocek. Nevertheless if her statement means tha ou need,to divorce the issues as previously cited from the approval or disapproval of this rezoning rest therraou should be slow to agree with that conclusion. He said they believe density is an issue..„anyouspy eventually be asked to address. Their concerns about such issues are clear, real and genurt�eitivd sfiuld a &, ffect the decision the Commission makes. Their position is supported by both the Sec7 cn (-- se as -11 Ordinance and the City Code. r- ni He said in the Sensitive Areas Ordinance it is clearly written that the ordinance is0ld Mc them � environmental policies of the city's Comprehensive Plan and that the purpose of the ~-+s ural.uot rds protect the public from injury and property damage due to flooding, erosion and other which can be exasperated by development of environmentally sensitive land." The SAO further stges in Section 14.16J1, subsections 1C quote, "Review and approval of a sensitive areas planned development should be by ordinance in accordance with the planned development housing overlay zone as specified in Section 14.6J2D." He said he wanted to read one sentence from that reference. The Planning and Zoning Commission should recommend approval or denial of the plan and shall make a written report of it's findings to the City Council. The report should include findings that the variances in setbacks, lot area requirements, building types and sizes and combination of land uses will be in the public interest. Will be in the public interest in harmony with this chapter and will not adversely affect nearby properties. He said obviously they believe the proposed rezoning is not in the public interest and that it will adversely affect their neighborhood and the properties adjacent to the development area. Therefore they believe this request for rezoning should not be approved. Judith Klink, 1101 Harlocke Street, said she finds several things about this proposal disturbing. She is concerned first about water drainage. Her neighborhood is well aware of what even a small change in surfacing can make. The areas behind those apartments on Harlocke were hard surfaced a few years ago; a long surface about 20 feet wide and 100 feet long. It was universally regarded as improvement until the first heavy rains came. Her neighborhood slopes down toward the west from that part of Harlocke Street. Since that seemingly innocent pavement improvement, they have had to deal with a number of unanticipated problems. When it rains heavily they have streams flowing through their yards and lakes forming in gardens. There has been basement flooding and the sewer backs up at the low point of Weeber Street. So the 'drainage system proposed here is a much larger scale and very extensive. It involves three large concrete retention facilities interconnected by pipes. There will be a lot of water runoff from new roofs and new parking areas. She said four acres that have acted as a natural water retention area will be seriously redesigned and have a lot of asphalt and buildings. She said what if the plan system doesn't work and basements in Benton Manor flood. What if there is erosion as the water rushes down to the Iowa River. What if we don't have a big rain until a year after the construction. How long will the affected residents to the east have to complain. What might be the long term effects of this on the water table. Another thing that bothers her about the water plan is that it will probably be unattractive. In this 4- acre area, more than half is in trees, 27% of the trees will be removed. Which trees? Ones which are providing natural erosion prevention on the north side of that deep ravine. On the plan she can see • • Planning and Zoning Commissi,... Minutes February 15, 2001 Page 10 scallops of a proposed tree line and a present tree line. She said it looks to her like the north side of the ravine will be denuded. The dense woods presently provide a pleasant buffer between the Hillsborough Manor and the homes in the Harlocke-Weeber neighborhood. This buffer is appreciated by residents on both sides of it. The present deep ravine which is wooded looks like it will be formed into a concrete retaining pit. It looks like where the dam is planned is the location of one of the few really big oak trees. She said they moved to Harlocke street in 1978 before Benton Manor was built and there were numerous huge oaks and extensive wooded areas in what is now Benton Manor. That is all gone and the water retaining pit in Benton Manor is a huge open eyesore. Forest Ridge was built in 1995 and the pit behind it is even uglier and behind it almost the entire steep hillside was denuded to build it. In the Neighborhood Open Spaces plan and the Sensitive Areas Ordinance adopted in 1993 and 1995, city residents were very hopeful. One of the stated purposes of the Sensitive Areas Ordinance is, "Foster urban design that preserves open space and minimizes disturbance of environmentally sensitive features and natural resources. Recognizing the importance of environmental resources and protecting resources from destruction." The present proposal may follow the letter of the law of the Sensitive Areas Ordinance but it certainly does not follow the spirit of it. Harlocke Ridge, when construction is completed doesn't look like it will be significantly different from the ravages of Benton Manor or Forest Ridge even though it will be built after the Sensitive Areas Ordinance was put into effect. She said another thing she noticed is the large number of concrete retaining walls. These are south and west of the lower building and around the northernmost building and around parking lots. Again, the spirit of the Sensitive Areas Ordinance allow the trees already occurring on the slopes to help prevent erosion rather than destroying them and building retaining walls. The proposal does provide for replanting with trees, a meager replacement for the 300 she estimates will be destroyed. She said her last point has to do with the future. She understands that the City Attorney advised that traffic concerns aren't relevant to the adoption of this plan. The City Engineer estimated traffic on Harlocke and Weeber would increase to 503 vehicles a day, slightly over the maximum allowed on a street without secondary access. She said what would happen if Mr. Ruppert wants to build residences on his property on the end of Harlocke. Does this mean there could be no development on the Ruppert property that exits onto Harlocke. If this development is approved in it's present form what can we anticipate with other development at the end of Harlocke. Because of the concerns she has about water runoff and the replacing the natural tree twifer with a unsightly water basin and the traffic concerns for the future, she has serious reservatirjs aabounhis project. D —�-� Tom Gelman, 714 McLeary, said he is the attorney for Southgate Development. He saidehyg cyte a narrow review for the Planning and Zoning Commission; narrower than some of the cobel2Irceptsht (- indicate. This project does require a Sensitive Areas development plan. It require one b- ge o my y M one intrusion into the sensitive area and that's the intrusion for the storm water re bQ � �at's�ast intrusion is specifically a permitted use under the ordinance. It just needs to be done in a intrusive as possible to the sensitive area. This plan has a design which is least intrusive a ,•,•ssibl he City staff has concurred with that. That's really all this Commission is authorized in the nature Mt his review, is to be sure that the intrusion in these sensitive areas is acceptable and consistent with the ordinance. In fact it's been concurred that the delaying of the water, the detention of the water will have the capacity to improve the storm water management emanating from this area by slowing down the water that is already leaving the area. As such, they believe by the narrow issue of what's before the Commission, the ordinance is complied with very clearly and the intrusion is very minimal and disrupts the sensitive areas identified in the plat very minimally which is all the owner is required to do. He said additionally he would indicate that because of the specific design that the owner has put forth and the preservation of the sensitive areas and the dedication of land for park purposes, all of which were perfectly acceptable to him, the density here has been reduced by as much as from a density possibly as high as 176 units to 39 units. He agrees with the City Attorney that that is not the issue before you but it's an important element with this particular plan. Some of the impact of that reduced density helps to minimize the impact on the sensitive areas. He said what they are seeing here minimally impacts the sensitive areas which is ultimately consistent with the letter of the ordinance and the intent of the ordinance. Geor eann Chaven 1124 Harlocke Street, said the Commission has heard from many of the older residents; she has been there 4 years. Her concerns refer to the attorney's comments. Yes we are talking about sensitive areas as far as the environment, but there is also a sensitive area in terms of people. Th area is designed for, or when she purchased her home it was considered a new area in that young p pis were moving into the area. She said they have a great mix of young and old people and she likes that mix. Her neighbors moved in a year after her and they now have a small child. That child is going to be running up and down that street. New neighbors across the street will soon be developing a family as Planning and Zoning Commissic.', Minutes February 15, 2001 Page 11 well. She lives on the corner of Weeber and Harlocke and though she doesn't have mailboxes taken out like her neighbors, she hears the squealing tires as they go up the hill. Adding additional traffic on that street will substantially affect my sleep at night because she's already wide awake several times a night because of the cars going back and forth. She said the traffic is tremendous already. She said the other issue is that when you go up the street there are people who park on both sides of Weeber. There isn't even enough room to get through. If we add more traffic and more parking, what's going to happen. Jeffrey Gauthier, 1108 Weeber Circle, said he would like to draw attention to part of the title of this austere group and that is Planning. He said having been here to visit with the Commission's predecessors for several hours, the real issue is the planning aspect of what this represents. There are many more acres to be considered at some point in our future. It seems to him that before we step off into this development and what the Commission's charge is they need to consider what the long-range plan is. He said many hours were spent before the predecessors trying to collaboratively and collegially decide what we could do with 44 acres a rarity in the City to come up with some kind of plan that reflects and respects the existing neighborhood that gives thought to a mixed development and coordinate with some of the highest density housing in the entire city on Benton, a sheer ghetto by description to come up with something that works for everybody. Much of that effort over the past 10 years dwelled on the issue of what to do with the traffic and this does not appear to have addressed it and only exacerbates a situation that will come back to haunt us all. Much effort went to trying to move that traffic to the east, the restriction of great magnitude of trying to access Highway 1, the efforts of trying to finesse an access to Miller and he can't conceive of discussions about this development without seriously looking at the entire area. To step off and approve this now without a clue about what's going to happen in the future doesn't make sense. He encourages the Commission to consider the planning aspects of their charge aald to pause here to take an opportunity – he doesn't recall the developers ever engaging in meaningfultalogueath the neighborhood. He appreciates what staff does to interpret the ordinances but staff to nowli9e does not live in their neighborhood. So he thinks there has been some dialogue that is cri camig and he thinks they would be remiss in not suggesting and encouraging you to pause and gi c�_e Ft secus E consideration. —j 0 Ruth Baker 5 15 West Benton, said she's from the Miller Orchard Neighborhood and tota5eeith Q Gauthier. She said he made some good points about the Commission's charge as planrg. hisn9 an area that is close to downtown and we ought to be thinking more in long range planning APs far aseyhat we're going to do with this precious area. She said in her neighborhood they recently got two acres of parkland and it's been their hope that there would be some way they could connect with this area to form a trail to some open space. She said the Parks and Recreation Commission has indicated for the density they should be allotted seven acres but they don't have that. She said they do have their quota of complexes and apartment buildings and there's nothing wrong with having those mixed with single family homes but we need to be thinking about overdoing this area with the traffic that is already there. She said we need to be sensitive to the extreme hilliness of those streets and the dangerous areas that this might cause by putting the added traffic. She said she wants the Commission to think about this carefully before they make any decisions. Ernie Cox 913 Harlocke Street, said he would like to talk to the narrower issue that counsel and Mr. Siders would like to discuss. He said he feels his neighbors have addressed the other issues adequately. First he would like to talk about the easement. While the notation on the most revised plan at least outlines the intent of the easement, it doesn't have the effect of the easement. He asked if that was correct. Holocek said it is not a grant to the City of any affirmative right but that is not outlined in the Sensitive Areas Ordinance as a requirement for approval regarding steep and protected slopes. Cox said that at least the note gives the spirit of the easement and he doesn't know why the counsel for if hey are sensitive ise still reticent oneo grant he posed attthet last meeting isely an thatinterested of one aspect of the sensitive area. He said question of and the of scenic cnce He said he'shich tes a unclearnhowatherof impact on thenhabitatt hashbeentassessed.rHe agreestion scenic characters. felt that thatry for them to more dialoguecatcould abouutotheur and in soil erosiont the the northerondspot. Heltsaidsthey have made initial be more educated hopes as Mr. Sid with the will bety open Dwiithoil conservation that organization inpthe futrts and ureeto try to look okCity at the impace1l as and Mr. Siders and counsel possible alternatives if there are environmental impacts to sensitive areas. Planning and Zoning Commiss,_ . Minutes February 15, 2001 Page 12 Melissa Ruhlow, 911 Weeber Street, said they bought their house about one year ago. She said she has her two children who are 4 and 8 and two children next door who are 3 and 6, her neighborhood is regenerating daily. Her concern is traffic and the high population of children. She said if you increase that traffic, even if it meets the city limits by 3 cars you increase traffic. She said they have a hard enough time with people cutting through from Sunset to go the speed limit. She said cars are constantly flying up and down their street; that's with the 298 cars per day. She said what's it going to be like if you increase that to 503 cars per day, every single day. She said that's her biggest concern as well as what it's going to do to the rest of the neighborhood as far as depreciation. Bill Graf, 1123 Harlocke Street, said he lives on the southeast corner of Harlocke and Weeber. He said he had to smile when he heard the developer say they've been working on this for nine months. He's lived there for 26 years and has been before the Planning and Zoning Commission for 117 years on this same issue. He said the problem he is most concerned with is traffic. He said there are many issues that are germane even though they've been told they aren't germane. But traffic is the big one. He said he is very . concerned. He said he brought up 4 kids in that neighborhood and he plans to bring his married son with two kids back into his house next year and he doesn't want his grandkids playing in the street where it's dangerous because of the increase in traffic. He said it was mentioned and a report was done that 503 cars is only 3 over the limit. He said he works on computers and does a lot of estimating. Most of the time his estimates are either low or high. In this case what it the estimate is wrong and you have 600. Are you going to come back a year later and say take out the development because you're over the estimate. He said if you're at 500, which is the limit it would be very dangerous to approve at the limit of that street. He said he heard concerns of exiting Weeber onto Benton and that is a concern but there are other concerns. There are concerns of entering Weeber when you have snow banks and parked cars there's only one lane of traffic. Doubling that traffic is dangerous. Cherice Wykkoff, 1117 Harlocke Street, said her main concern is traffic. They are planning on startirtga family soon and so it's a real issue for them. She also has a cat and she worries about mor ossibililts of him getting hit. The other issue is maintaining the character of their neighborhood. milt —n thought it was interesting the first decision of the meeting that the Commission made was tarp character of the neighborhood. She said even though their neighborhood isn't historic, it st. vac- lee 'e and it's still worth protecting so she would urge the Commission to vote down the rezoning issuZI m -b 1 in Stephen Tully, 917 Harlocke Street #5, said he's been a renter there since 1996_ He said in th 'loose plan he has a nice view of the driveway to this development. He said there are many ren - ' tff) neighborhood and he understands legally that makes them second class citizens but they do e abotsb the impact on the neighborhood. He said Mr. Siders said he would allow the other people to speak. He— said he doesn't know Mr. Siders personally but he has no doubt he's a good employee. He said they are good neighbors and a good community and they're concerned about what happens to people and their lives not only on their street but on the one next to it. They're concerned about the environmental impact on a neighboring property that this development appears to have. They're also concerned about the impact on public safety, which may or may not be of interest to this Commission. He said he'd like to note the irony that the Commission earlier this evening voted to maintain the character of a neighborhood. He said they may not be under any legal obligation to preserve the character of their neighborhood but they are certainly concerned about it. He said Gelman mentioned that the planus currently proposed,minimally impacts the sensitive area but he wants to remind the Commission that to put 39 dwellings on an area which already has large multi storied apartment buildings in a highly dense areas does nothing to minimally impact the neighborhood or the surrounding areas. The potential problems with the water runoff do not minimally impact the anxiety of their neighbors. To allow for development that almost doubles the estimated daily trips on Harlocke up to Benton does not minimally impact the neighborhood nor add to it's character. Ehrhardt said they do not feel renters are second class citizens. Paula Ford, 905 Harlocke Street #8, said she will probably be emotional. She said she really did notice the contrast between how the first issue before the Commission was treated compared to this one and she has a hard time comprehending how people who would approve of this plan who wouldn't want to live under those conditions themselves. She doesn't understand what their justification might be for imposing it on second class citizens. Knabe said Bovbjerg asked Cox if they would be willing to discuss this with the developer and he thinks it's pretty obvious that the Weeber-Harlocke neighborhood doesn't have a tradition of being bashful. He said they do welcome any opportunity for open dialogue. Planning and Zoning Commiss, Minutes February 15, 2001 Page 13 Public discussion closed. MOTION: Shannon moved to approve REZ01-0001 a rezoning from High Density Multi-family Residential RM-44, to Sensitive Areas Overlay, OSA-44, on 4.01 acres to allow 39 dwellings in 3 building located on the east side of Harlocke Street, subject to Public Works approval of a grading and erosion control plan prior to Council Consideration and verification from the State Archeologist that there is no archeological site that requires further study per the Sensitive Areas Ordinance. Schintler seconded the motion. Hansen asked Holocek for clarification whether this was an issue where they vote if it's in compliance or not in compliance. Holocek said the application before the Commission is asking for approval of a Sensitive Areas Development Plan so the application is requesting approval that this plan is in compliance with the Sensitive Areas Ordinance. She said the issue of density goes to the issue of the zoning the property at RM-44 where it currently sits. Hansen said he's more interested in traffic and having a negative impact on that neighborhood. Holocek said the property is currently zoned RM-44, although a property owner does not have a right to current zoning, zoning is a fluid and changeable designation. Currently, the applicant is able to build at a density allowable under RM-44 which is some tacit indication that the infrastructure is there to support that type of development. She asked Hansen to clarify what he was asking about traffic. Hansen asked if traffic is something he can think of as being a negative impact on that neighborhood that would not conform with the Sensitive Areas Ordinance. Holocek said if the Commission after reviewing this particular plan and listening to public comment finds that the designation of this property at RM-44 is not appropriate because infrastructure does not support it, the Commission can of it's own accord recommend a different zoning designation. Miklo said he could address the traffic issue. Local streets can carry in the low range of 250 trips a day up to about 1000 trips per day. For a secondary access guideline a midpoint was chosen of 500 vehiclets,per day, which is half of what a local street could carry. It was determined that if a local street as golf@ to carry more than 500 vehicles per day then there was the need to consider a secondary acc: ,_not in and Transportation out rtat o n a n Planner location. be very hesitant tant toers that say youbefore shou d deny something just beca se -ese trafffic - Transpo C7 � might be 3 cars over the secondary access guideline. r rn Hansen asked if the 500 number is based on streets that are the same width as we're talking-GO N�s Miklo said it's based on local streets and 50% of the local streets in Iowa City are the sa width O Harlocke Street. Ehrhardt said she feels this property is not appropriate for RM-44. She thinks everyone knows that former Commissions have looked at this and the same problems are still there. It sounds like from the minutes that the Council did not have the courage in the past to go along with what staff and the Commissioners felt. She said the emotional part of this is that one of the reasons she is on this Commission is that she watched one of those ravines filled in and destroyed. She said she would hate to be a part of destroying another ravine. She discussed with staff about what it would take to downzone this as a Commission. She asked staff to explain that and what the Commission's options are to downzone this to a more appropriate zoning. Miklo said the current zoning is RM-44, which allows 44 units per acre. Staff has studied this twice before at the request of the neighborhood and on both those occasions staff recommended somewhere between 12 and 20 units per acre. One of the reasons staff is recommending approval of this is that it is 9.5 units per acre so less than what staff previously found was appropriate. He said he agrees if this were developed at a density of 44 units per acre it would be very questionable, however this is not being developed at RM-44, it's being developed at less than RM-12. Ehrhardt asked if it was RS-5 would it need this retention basin. Planning and Zoning Commiss, Minutes February 15, 2001 Page 14 Miklo said yes it would. Hansen said if it was zoned at RS-5, which is 5 units per acre; you would have 20 units. He said if you have 39 units at two-bedroom; that's 78 people and that would generate 503 traffic trips. Miklo said 503 trips includes the existing residences. Hansen said even if you went to RS-5 and built 20 homes, what kind of traffic would that generate. Miklo said generally multi-family housing generates 6 trips per day. Single-family homes generally generate more. He said they've been using a number of 7 although a recent study showed it was more like 9 or 10. So, approximately 140 trips per day. Hansen said then it would be 65 less trips per day at RS-5. Holocek said the Commission would have to give particular findings as to why they feel that this is not an appropriate plan given that it's designated at RM-44 but with the current plan it's being developed at 9.5 units per acre. Those findings need to be very clear as to why this is not an appropriate plan, given the inherent physical characteristics of the land as well as it's current zoning. That would include the infrastructure concerns. The Commission has the ability of their own accord when presented with a plan to make a recommendation to council as a result of that application. She said she knows it has been stated that the application before you is with regard to the environmental characteristics of the property and whether or not it is in comport with the Sensitive Areas Ordinance. Again, after hearing the testimony, the Commission could make a finding that the current designation on this property is not supported by the infrastructure serving the property. To do that, the Commission would have to make an appropriate motion and follow that with an appropriate vote. Hansen said many people expressed concerns about storm water. He asked what the impact is go¢ to be with more people. VZ C7 s Miklo said in terms of the area to the west; that was built before the Storm Water Managemerdince.,n This particular area according to the City Engineer that reviewed this property would be acDmr6rovrnent� to this area because of the facility that is being built would slow the runoff. -G Cf l 'D rn Hansen said if they are going to consider a new zoning, he has heard all the reasons pe®l•Ron'NrantO something and he would like to know what they do want. D C Holocek said she would suggest if the Commission is so inclined, the property owner would have•rdue right to know what you are inclined to do and to address that. Miklo said he's not speaking for the neighborhood but there were two requests in the past from neighbors to downzone this to RS-5 so whether that's what they still feel he can't say. Holocek said the 45-day limitation period expires on February 22, 2001. The Commission has a current motion to approve the plan and if they are inclined to go in another direction, that would require a deferral, which would require the applicant's consent to waive that 45-day limitation period. Bovbjerg asked if the motion were retracted, they would have to get approval from the applicant to waive the limitation period or they could send it on to council without a recommendation. Holocek said you have to make a recommendation or it is automatically deemed as a recommendation of approval according to the Zoning Code. Bovbjerg asked Siders if there was a deferral, would he grant them until March 1, 2001. Siders said no he would not and if the Commission decides to not approve this project he would appreciate if they would articulate why they are not approving it. Miklo clarified with legal that the Commission needs to vote whether or not the application is in line with the Sensitive Areas Ordinance and the second issue would be to start the process to downzone this property if they have concerns about the current designation. • Planning and Zoning Commiss Minutes February 15. 2001 Page 15 Holocek said she's not sure the two issues can be divorced. The Commission may feel it meets the intent and spirit of the Sensitive Areas Ordinance but the infrastructure issue raises a concern about the current RM-44 designation. Schintler said she thinks it does meet the Sensitive Areas Overlay and she's not concerned about the water retention because it's been approved by the engineers and she really appreciates the open space so she would vote in favor of it. Shannon said there's a lot of speculation about what bad things could happen but some good things could happen too. He said there's a lot of bad things happening over there right now that should be addressed somewhere down the line but it doesn't mean this will get as bad as it could be so he is going to support this project. Ehrhardt said she will voting against this. The reasons are that the infrastructure does not support this, the traffic is a major problem and she is concerned about the water retention basin. She said it seems like you put all this concrete instead of the land that absorbs water. She said she knows the engineers come up with a great plan but in her mind she can't visualize how this is going to be better than land absorbing water. Hansen said he initially thought it was okay because of 9 units per acre, which could limit the density and the affect on neighbors of what could happen to this property. He finds the development in and of itself meets the letter of the law but it stretches the credulity as far as traffic goes especially with Weeber going uphill to Benton. Benton has been a problem forever. He doesn't like the way it impacts the neighborhood and he will be voting against it. Bovbjerg said this issue has been around for a long time. The zoning of RM-44 never should have been done in the first place and everything that's been done since then has exacerbated that. She said it's very difficult to say to a property owner that they can't build something because of the traffic problems, which weren't their fault to begin with. To the question of whether this fulfills the Sensitive Areas Ordinance, the answer is yes. To the question of whether this impacts the people in the neighborhood, the swer i s. However the density proposed is much less than the density allowed under the RM-44 zon . hev be voting in favor of this project. D b The motion carried on a vote of 3-2. P- " r- CZ01-001. Discussion of a request submitted by Dykstra Real Estate Partnership to rezo - -rap roximpatel fl7 7.13 acres located on the north side of Herbert Hoover Highway, approximately '/4 -!'-easMf it0 intersection with Taft Avenue in Johnson County from (A-1).Rural to (CP-2) Planned Corr rcial.eN p Miklo said this parcel was the subject of much discussion during the adoption process of theturrent Fringe Area Agreement, which was adopted in December 2000. Staff recommends that this proposal be deferred until a review committee, comprised of members of the City Council, Board of Supervisors, and/or members of the Planning and Zoning Commissions, and staff, develops a more comprehensive plan for this interchange to attempt to address the desires of the County and City. This is consistent with the new "conflict resolution" section of the Fringe Area Agreement, which allows the City and County to come to an agreement about a subdivision, rezoning, or annexation that may be in conflict with the Fringe Area Agreement. While the results of the review committee may not include the Dykstra property as a commercially designated parcel, it will hopefully result in a more detailed plan for future commercial development at this interchange. In the meantime, the Dykstras may establish the nursery and greenhouse elements of their proposed project under the A-1, Agricultural zoning. Dennis Dykstra, 1803 Grantwood, said he hope for a lesser term than being deferred indefinitely. He said he's had some discussions with County Planning and Zoning. Schintler asked Dykstra if he planned to have a sales office. Dykstra said it should go hand in hand. Hansen asked about the type of landscaping the nursery would use. Dykstra said pot to pot and explained. He said with A-1 they could have a sales office. Planning and Zoning Commiss Minutes February 15, 2001 Page 16 Public discussion closed. MOTION: Ehrhardt moved to defer CZ01-0001 indefinitely. Shannon seconded the motion. The motion carried on a vote of 5-0. SUB01-0001. Discussion of an application submitted by Thomas Wegman for an extra-territorial final plat of Prairie View Estates Part 4, a 30.86, 21-lot residential subdivision with two outlots located north of Interstate-80 and east of Prairie du Chien Road in Johnson County. Miklo said staff recommends that SUB01-0001, a request for final plat approval of Prairie View Estates Part IV, a 30.86 acre, 21-lot residential subdivision with two outlots be approved, subject to approval of legal papers and construction plans prior to City Council consideration. Public discussion open: There was none. Public discussion closed. MOTION: Hansen moved to approve SUB01-0001, a request for final plat approval of Prairie View Estates Part IV, a 30.86 acre, 21-lot residential subdivision with two outlots be approved, subject to approval of legal papers and construction plans prior to City Council consideration. Schintler seconded the motion. The motion carried on a vote of 5-0. CODE AMENDMENT ITEM: Discussion of Development Regulations Analysis report presented by Duncan and Associates. Public discussion open: There was none. Public discussion closed. MOTIOment tions Shannon Associates and forwardhto Coue lncirl. Ehrhardt aseconded Analysis report The presented Duncan andmotion D carried on a vote of 5-0. COMPREHENSIVE PLAN ITEM: MOTION: Schintler moved to set a Public Hearing for March 1, 2001 on an amendment to the Comprehensive Plan to include the North District Plan. Shannon seconded the motion. The motion carried on a vote of 5-0. Schintler moved to approve the minutes of the February 1, 2001 Planning and Zoning Commission meeting as written. Hansen seconded the motion. The motion carried on a vote of 5 – 0. ADJOURNMENT: `; The meeting was adjourned at 10:45 p.m. D-{ r M u' (— Dean Shannon, Secretary �� D o Minutes submitted by Diane Crossett N DPdadmlmoVpda2.15-01 doc .=(LE 'No .7 a2 0aiO3 '01 02:19 "):S0UTHGATE CE'vELOPrENT FAX.:31g3379823 PAGE 2/ : EXHIBIT "D'' City of Iowa City H _ MEMO RAN mc I DATE: March 29, 2001 0 TO: City Council � Attorney -= _ *I FROM: Eleanor M. Dilkes, City 4.01 Acres on East Side of Harlocke Street from RMg td O. RE: Density, of no Density, Multi-Family Residential) to OSA-44 (Sensitive Areas O Y I Allow 39 Dwelling Units in Three Buildings l complies with those A. issue Before the Council NotwithstandingorPPlicant'sther you plan believe the City's laws are right or wrong, requiredo whichwthe ret this property roved. This is a sensitive areas rezoning that is laws rezoning mustebe approved. s (City e only because of the existence of regulated slopeset forth atdSectionl 14-6K-1(1)14-6K-1(C) ent(t ed The regulations dealing with regulated slopes are 'Regulated Slopes'. Subsection 1 of this section sets forth the purposes of regulating p eluate its purposes as stated in subsection on and near steep slopes andtheremaining subsections are the rules or development requirements the City has put in place toe hide in interpreting and 1. The purposes of the ordinance should be used as a 9 evaluating the specific requirements but not as an independent basis of denial. The design standards for regulated slopes ace set forth at subsection City staff determined that the development plan meets all of the applicable ds. n Subsection 4(b) prohibits grading outside the dconstructiminimizeda (excen pt for radriveritays and utilities installation) and requires that gr bythe installation cal and sets osf storm In this case, the serves'within aspro ectedeslope and buffer. 14-6K-1(E) sets forth 3 allows h water controlwfacilities the uses permitted within protected sensitive areas and buffers. Subsection are ey installation of public utilities, including storm water detention otectfacilities ti sensiti he areas "designed and constructed to minimize their impact upon the p As 1 understand it, the associated buffers" and the areas are restored after the work is done. City staff has and applicant's plan complies with this of concluded that the storm water facility is located within thesensitive areas because this is the low part the property where the storm water is directed. public hearing to subsection (1)(c) of Section 14- Reference was also made during the which statese that one of the ) (SensitiveposesAreas Dedesign ment lisntoO"enn courage development which pfovidn t access of the decu a guidelines and bicycles". This section for easy access and circulation for pedestrians applicable here. The purpose of this section is to provide guidelines for designing developments that deviate from the City's standard code requirements. In this case there are no from any of our underlying codes. are no deviations c noted, zoning is often said to be fluid. In some contexts, As one member of the PubliIt is not applicable here. The statement made it deems amend its zoning ordinances at any time fers this statement would be applicable. city's circumstancesto the concept that a cityscouncil mayprocedural justify such action, if the ordinae�ths instate accordanceandlocal with the ehlac is enacted in accordance comprehensive p ` - ''3379S23 PP.GE :, .PILE No .7 2 C4, -- 'u 1 Go:2C 1:SOUTHGATE DEPELOPnEriT --��!:3 / RezocSce St. 4.01 Acres on East Side of Nano F ` � D ing Page 2 9, 2001 March 2QQ� '��r1 30 Page 2 ho•. ►n this case. ro property, and this council vin e unreasonable or arbitrary. ;s not to downzone this p p o zthis C � lis n l Cfif T requirements and opportunity right to develo� its P{ p , i - . one the oPP licant the JOHNSm Cf. . i c 3 . councils have foregone deny the app now to a Position ordinances with the City's applicable zoning this is Conflict of interest. In light of the Mayor's recusalo f himselfsof the City o will be five of the six remaining i g me be is calculated B. Ma orit required 4, Code Iowa. the supermal y Section 380. -all the membe n-,atter, conflict of interest, ubtic hearing without hout. In cases of a due to a conflict of interesst.uSecti that the P member abstainingWhile l u not concur without the mem Neighborhood Association haslic hearing, o{ action is for The opeber t-tecause the Mayor presided at the P resent course the public erred because I believe the present c Because be reopened encs made in that letter, of Pro Temp meetingon statements held with the fv1aY Tern hearing for its next h with all the to be public another public hearing hearing Was clos+�d the Council will need to reset a April 17. Please feel free to call me if you hGve any questions concerning this matter Stephen J. Atkins, City Manager cc: Clerk Marian Karr, CityDevelopment Dale Helling, Assistant City Manager nd Community Karin Franklin, Director, Planning Bob Mikio, Senior Planner oc. )>n = m. : c.) (A r m -o m D o N END OF CASE FILE I • • IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY OAKES CONSTRUCTION CO, � NO. M�VOL(tgt4-� PLAINTIFF, ) ) ORIGINAL NOTICE v. ) IOWA CITY BOARD OF REVIEW, ) n AND CITY OF IOWA CITY, IOWA, ) w DEFENDANTS. ) m [Ti 0 D TO THE ABOVE-NAMED DEFENDANTS: You are hereby notified that there is now on file in the office of the Clerk of the above Court a Petition in the above-entitled action, a copy of which Petition is attached hereto. The name(s) and address(es) of the Plaintiff's attorney is Kirsten H. Frey, 920 South Dubuque Street, P.O. Box 2000, Iowa City, Iowa 52244. You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City, Iowa,judgment by default will be rendered against you for the relief demanded in the Petition. LODEMA BERKLEY (Seal) CAIK OF T E ABOVE C T Johnson County Courthouse Iowa City, Iowa 52240 NOTE: Persons named as Respondents are told to "appear thereto and defend." These words are not always understood. The required appearance may be made either by the Respondent or by Respondent's attorney. IT IS NECESSARY TO SERVE AND FILE A SPECIAL APPEARANCE, MOTION OR PLEADING TO PREVENT A DEFAULT (Rule 87). The attorney who is expected to represent the defendant should be promptly advised by defendant of the service of this notice. If you require the assistance of auxiliary aids or services to participate in Court because of a disability, immediately contact your district ADA coordinator at 319-398-3920 Ext.200(if you are hearing impaired,call Relay Iowa TTY at 1-800-735- 2942). kf19\r63a1065 CC- '. C. , , , • IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY OAKES CONSTRUCTION COMPANY, ) ) EQUITY NO. s L VC) Lat4 PLAINTIFF, ) ) vs. ) PETITION _ ...- IOWA CITY BOARD OF REVIEW ) _ --- and CITY OF IOWA CITY, IOWA, ) - Q, r DEFENDANTS. ) =� -?xiE 0 COMES NOW, the undersigned attorney for the Plaintiff, Oakes Construction Company, and for cause of action against the Defendants Iowa City Board of Review and City of Iowa City, Iowa, states as follows: 1. Plaintiff is an Iowa corporation doing business in Johnson County, Iowa. 2. Defendant Iowa City Board of Review is a governmental body organized pursuant to Iowa Code Section 441.31 (2001), and is a part of the City Government of Iowa City, Iowa. 3. The City of Iowa City, Iowa, is an Iowa Municipal Corporation located in Johnson County, Iowa. 4. On or about February 16, 2001, the Iowa City Assessor entered an assessment for property owned by Plaintiff located at I Street, Iowa City, Johnson County, Iowa, Parcel Number 1014412005. The total amount of the assessment was $14,400.00. 5. Pursuant to Section 441.37 of the Iowa Code (2001), Plaintiff prot-ed theme assessment to the Iowa City Board of Review. A copy of the petition to the Boarcf.eviiv rn is attached hereto as Exhibit "1" and is by this reference made a part hereof. ern o o . -2- 6. On May 16, 2001, the Board of Review maintained the assessment at $14,400.00. 7. Plaintiff contends that the Board of Review erred in its decision and that the assessment should have been reduced from $14,400.00 to 0, which is the actual value and fair assessment of the property. Pursuant to the City Code of Iowa City, this property is a non- buildable property. 8. Plaintiff contends that the property is assessed for more than the value authorized by law. The property is over-assessed by 7,200.00. The actual value of the property should be 0 because it is a non-buildable lot, and an assessment in that amount would be a fair assessment. Pursuant to the City Code of Iowa City, this property is a non-buildable property. WHEREFORE, Plaintiff requests that the Court hear the appeal of this case and reduce the assessment to the actual value and fair assessment of the property of$7,200.00 and grant any and other relief that may be appropriate under the circumstances. KENNEDY, CRUISE, ANDERSON & FREY, L.L.P. 10,1 0 Kirsten H. Frey 000001 :09 n wtfil 920 S. Dubuque Street 3.r 9, P.O. Box 2000 : a o Iowa City, IA 52244 C7� (319) 351-8181 (office) (319) 351-0605 (fax) ATTORNEY FOR PLAINTIFF KF 191R63a 1068 • • • • • •• .. to -l4 -412- -C 5 ;{^VJ"'C J /fit! , _ _____ L R-Et=MeV'• A'-kitr.„ S C-Commercial D-Dwellings REAL ESTATE ASSESSMENT ROLL for 201 S I -Ind.t(ljl, 0-Quthuildings IOWA CITY, IOWA DISTRICT PARCEL NO. • 100%ACTUAL VALUE TOTAL VALUE 100% CLASS LAND BUILDINGS YEAR IONIACJNASScSSOR 7, 200 7,a-OQ R 20-00 PRIOR ASSESSMENT 50 1014412005 14,400 14,400 R 2001 NEW ASSESSMENT NOTE:THIS IS FOR YOUR RECORDS ONLY-NOT A NOTICE FOR PAYMENT • LEGAL DESCRIPTION N If you are not satisfied that the foregoing assessment Is correct you may file a protest against such 0003 29 assessment with the board of review on or after April 16, to and Including May 5. Such protests to be EAST IOWA CITY 0 confined to the grounds specified In Section 441.37,Code of Iowa. T In each odd-numbered year,the assessments are subject to equalization pursuant to an order issued by � the Director of Revenue and Finance. The county auditor shall give notice on or before October 15 by U 1/2 LOT 3 BLK 29 publication in an official newspaper of general circulation to anyclass of properly affected by the • C equalization order.The board of review shall be In session from Ocober 15 to November 15 to hear the E protests of affected property owners or taxpayers whose valuations have been adjusted by the equalization order. ROLL MAILED r 01/14•0:11 -DANL HUDSON CITY ASSESSOR The abav+ ` 0o1 41 `• ,i T;t'i#'1'es�,tlt OWNER' OAt4�E5 N$TRUCTE0N COMPANY of t r port. ,;educt r*~d by7,..„..,,,„.;,,,,.„:...: ;Vax�O. 7"i" Ppb Sa a, .. LC 44', ` raW ,f.::::,,.,...::',..,,:,:.:',:..;....:,.:-..:_.,,, obo PARCEL:ADDRESS: I 2:001 Vatl411 1•r4i,11.0 c-411'• ,',1 : our Otft.:ce a=t ?,3 75066 l Y sT r cx � Ma►'rdh 3, to .Set *r^r appa�3rat'man�7'�� $0flA With .Vanguard Set. 0�1 •value OAKES CONSTRUCTION 'COMPANY ; i wi I l be used for taxes payable , PO BOX 1456 Sept 2002 and March '2003. IOWA CITY IA 52244-1456 Visit our new web site at ww 4. owaas as ars.com/ick c i_.,. v_ I a -e‘ ,,,„, r• A r4f' dr diMa\ s i-/117.7/ _ �c�S��oY e6 �/� &47W-,(72 ././a .4....--- 718.3-\P )\114 i o :0t Wn CZ Her ° z . Q J . . NOTICE OF APPEAL F I8 P,I ". ? TO: Patricia Kuhns Iowa City Board of Review ;1 i i.,;_ Pursuant to Iowa Code Section 441.38, you are hereby notified that Uakes Construction Company hereby appeals to the Iowa District Court in and for Johnson County, Iowa, the decision of the Iowa City Board of Review, dated May 16, 2001, with regard to the property located at I Street, Iowa City, Johnson County, Iowa, Parcel Number 1014412005. A copy of the Decision of the Iowa City Board of Review is attached hereto as Exhibit "A" and is by this reference made a part hereof. Dated this day of June, 2001. KENNEDY, CRUISE, ANDERSON & FREY, L.L.P. B te eatI Kirsten H. Frey 00000 :09 920 S. Dubuque Street I P.O. Box 2000 Iowa City, IA 52244 (319) 351-8181 (office) (319) 351-0605 (fax) ATTORNEY FOR OAKES CONSTRUCTION COMPANY KF 19\r63a 1066 Nv o n Cr Ny �� O • • . Board of Review Notice to Property Owner as to Assessment Regular Session Sections 441.35 and 441.36, Code of Iowa Parcel Number 1014412005 Deed Holder OAKES CONSTRUCTION COMPANY Contract holder Property address I ST Petition number 01-055 Agent Name DEAN OAKES You are hereby notified that the Board of Review acted on the assessed value of your property as follows: Date of Action Wednesday,May 16,2001 Prior assessed value $14,400 New assessed value $14,400 Location URBAN Class RESIDENTIAL Reason(s) 2A Insufficient evidence presented to prove assessment is excessive. The Board of Review has taken final action on your above described property and has adjourned 05/29/2001. Appeals to the district court may be taken from their action within 20 days of adjournment,or May 31st,whichever is the latest.—Section 441.38,Code of Iowa. Signed s._._(7,;5 Clerk of said Board of Review Patricia Kuhns NOTICE-In odd numbered years the foregoing assessments are subject to equalization pursuant to r.., an order issued by the Director of Revenue. The County Auditor shall give notice on or before 0 0 October fifteenth by publication in an official newspaper of general circulation of any lass of (-- property affected by an equalization order. The Board of Review shall be in session from October D� a fifteenth to November fifteenth to hear protests of affected property owners or taxpayers whose valuations have been affected by an equalization order. W (— _rn _ m Doio EXHIBIT P PAGE 1 END OF CASE FILE • IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY DEAN G. OAKES, NO. C--C_.a)ulg49 PLAINTIFF, ) ) ORIGINAL NOTICE v. ) ) IOWA CITY BOARD OF REVIEW, ) AND CITY OF IOWA CITY, IOWA, ) ) DEFENDANTS. ) TO THE ABOVE-NAMED DEFENDANTS: You are hereby notified that there is now on file in the office of the Clerk of the above Court a Petition in the above-entitled action, a copy of which Petition is attached hereto. The name(s) and address(es) of the Plaintiff's attorney is Kirsten H. Frey, 920 South Dubuque Street, P.O. Box 2000, Iowa City, Iowa 52244. You are further notified that unless, within 20 days after service of this original notice upon you, you serve, and within a reasonable time thereafter file a motion or answer, in the Iowa District Court for Johnson County, at the courthouse in Iowa City, Iowa,judgment by default will be rendered against you for the relief demanded in the Petition. LODEMA BERKLEY (Seal) CLERK OF TH ABOVE C URT Johnson County Courthouse Iowa City, Iowa 52240 NOTE: Persons named as Respondents are told to "appear thereto and defend." These words are not always understood. The required appearance may be made either by the Respondent or by Respondent's attorney. IT IS NECESSARY TO SERVE AND FILE A SPECIAL APPEARANCE, MOTION OR PLEADING TO PREVENT A DEFAULT (Rule 87). The attorney who is expected to represent the defendant should be promptly advised bdefendlig of the service of this notice. * Dc) If you require the assistance of auxiliary aids or services to participate in Court because of a disability, immel tely cont your district ADA coordinator at 319-398-3920 Ext. 200(if you are hearing impaired, call Relay Iowa TTY-ati>(8P0-7 r 2942). —G rrn m oMC 0 kf191r63a1065 �` p Q C. c' A IN THE IOWA DISTRICT COURT IN AND FOR JOHNSON COUNTY DEAN G. OAKES ) ) EQUITY NO. FALL)0CSL PLAINTIFF, ) ) PETITION ] ; vs. ) t= IOWA CITY BOARD OF REVIEW ) CO and CITY OF IOWA CITY, IOWA, ) -_ 77 ill �== re?? f DEFENDANTS. ) f.,, * * * * * COMES NOW, the undersigned attorney for the Plaintiff, Dean G. Oakes, and for cause of action against the Defendants Iowa City Board of Review and City of Iowa City, Iowa, states as follows: p O 1. Plaintiff is an individual residing in Johnson County, Iowa. -n 2. Defendant, Iowa City Board of Review, is a governmental body organ 2ti j l rn 0 pursuant to Iowa Code Section 441.31 (2001), and is a part of the City Governmentwa CD cv City, Iowa. 3. The City of Iowa City, Iowa, is an Iowa Municipal Corporation located in Johnson County, Iowa. 4. On or about February 16, 2001, the Iowa City Assessor entered an assessment for property owned by Plaintiff located at 2013 I Street, Iowa City, Johnson County, Iowa. The total amount of the assessment was $57,090.00. 5. Pursuant to Section 441.37 of the Iowa Code (2001), Plaintiff protested the assessment to the Iowa City Board of Review. A copy of the petition to the Board of Review is attached hereto as Exhibit "1" and is by this reference made a part hereof. • • • -2- 6. On May 16, 2001, the Board of Review reduced the assessment from $57,090.00 to $54,690.00. 7. Plaintiff contends that the Board of Review erred in its decision and that the assessment should have been reduced from $57,090.00 to $44,200.00, which is the actual value and fair assessment of the property. 8. Plaintiff contends that the properties are assessed for more than the value authorized by law. The actual value of the property is $44,200.00, and the property is over- assessed in the amount of$12,890.00. A fair assessment of the property would be $44,200.00. WHEREFORE, Plaintiffs request that the Court hear the appeal of this case and reduce the assessment to the actual value and fair assessment of the property of$44,200.00 and grant any and other relief that may be appropriate under the circumstances. KENNEDY, CRUISE, ANDERSON & FREY, L.L.P. Kirsten H. Frey 00000.4809 920 S. Dubuque Street( P.O. Box 2000 Iowa City, IA 52244 (319) 351-8181 (office) (319) 351-0605 (fax) ATTORNEY FOR PLAINTIFF 0 --iC) w i i 1 KF19\R63a1067 C 0 C^ o . f[ -//-4-1Z -0(71.- RECEOVD S A U 10WACITYASSESSOR IOWA CITY ASSESSORS OFFICE o NOTICE OF INFORMAL HEARINGSs C) o 0 PARCEL #: 1014412004 3=- cck, DEED HOLDER: DEAN G OAKES Ut PARCEL ADDRESS: 2013 I ST MAILING ADDRESS: PO BOX 1456 IOWA CITY IA 52244 U NEW 2001 VALUE: LAND: 24,000 � � s BLDG.: 33,090 `? N 200 TOTAL: 57,090 N LAid5 THIS ABOVE VALUE IS THE RESULT OF THE INFORMAL HEARING WITH VANGUARD. IF YOU HAVE ANY QUESTIONS CALL THE IOWA CITY ASSESSOR'S OFFICE AT 356-6066, EXHIBIT I PAGE THE FORMAL APPEAL DATES FOR THE BOARD OF REVIEW ARE APRIL 16TH TO MAY 5TH. THOSE PETITION FORMS ARE AVAILABLE AT THE IOWA CITY ASSESSOR'S OFFICE /Clai/I (VI °J2 af/112 J29 J/J-d-4142/L' 3-?°c cf- / ALP /VAC 0/, o 5: 4` / , NOTICE OF APPEAL FILED 2001 JUN 18 PM 7: 29 TO: Patricia Kuhns Iowa City Board of Review ' ` ` ' ` `'�' CART 1:11!N Pt, IOWA Pursuant to Iowa Code Section 441.38, you are hereby notified that Dean G. Oakes hereby appeals to the Iowa District Court in and for Johnson County, Iowa, the decision of the Iowa City Board of Review, dated May 16, 2001, with regard to the property located at 2013 I Street, Iowa City, Johnson County, Iowa. A copy of the Decision of the Iowa City Board of Review is attached hereto as Exhibit "A" and is by this reference made a part hereof. Dated this n day of June, 2001. KENNEDY, CRUISE, ANDERSON & FREY, L.L.P. 'a SIJ �, � 1 Kirsten H. Frey 000001480( 920 S. Dubuque Street 6 P.O. Box 2000 Iowa City, IA 52244 (319) 351-8181 (office) (319) 351-0605 (fax) ATTORNEY FOR DEAN G. OAKES KF191r63a1064 ry OC=2^^ CZ) m XO. rn X 7-1: D Board of Review Notice to Property Owner as to Assessment Regular Session Sections 441.35 and 441.36, Code of Iowa Parcel Number 1014412004 Deed Holder OAKES,DEAN G Contract holder Property address 2013 I ST Petition number 01-056 Agent Name DEAN OAKES You are hereby notified that the Board of Review acted on the assessed value of your property as follows: Date of Action Wednesday,May 16,2001 Prior assessed value $57,090 New assessed value $54,690 • • Location URBAN Class RESIDENTIAL Reason(s) 1D After consideration of all data presented to the Board of Review,assessment was changed. The Board of Review has taken final action on your above described property and has adjourned 05/29/2001. Appeals to the district court may be taken from their action within 20 days of adjournment,or May 31st,whichever is the latest.—Section 441.38, Code of Iowa. Signed Clerk of said Board of Review Patricia Kuhns NOTICE-In odd numbered years the foregoing assessments are subject to equalization pursuant to an order issued by the Director of Revenue. The County Auditor shall give notice on or before October fifteenth by publication in an official newspaper of general circulation of any class of property affected by an equalization order. The Board of Review shall be in session from October fifteenth to November fifteenth to hear protests of affected property owners or taxpayers whose valuations have been affected by an equalization order. d --n w 1 D c N EXHIBIT A PAGE END OF CASE FILE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF IOWA - DAVENPORT DIVISION HSIAOYUN HSU; KUNYING GUAN; ) and JIAN XU, ) -37� —n ) No. 3:O1CV80070 � C.‘-;Plaintiffs, iCr 7:" v. ) .p CITY OF IOWA CITY; ) WAIVER OF SERVICE OF cr R.J. WINKELHAKE, Chief of Police; ) SUMMONS JENNY CLARAHAN, Police Officer; ) and, COLIN FOWLER, Police Officer, ) ) Defendants. ) To: Nathaniel K. Hsieh, Attorney for Plaintiffs I acknowledge receipt of your request that I waive service of a summons in the above- captioned action, which is case number 3:01CV80070 in the United States District Court for the Southern District of Iowa. I have also received a copy of the complaint in the action, two copies of this instrument, and a means by which I can return the signed wavier to you without cost to me. I agree to save the cost of service of a summons and an additional copy of the complaint in this lawsuit by not requiring that I be served with judicial process in the manner provided by Rule 4. I will retain all defenses or objections to the lawsuit or to the jurisdiction or venue of the court except for objections based on a defect in the summons or in the service of a summons. I understand that a judgment may be entered against me if an answer or motion under Rule 12 is not served upon you within 60 days after August / 7 , 2001, or within 90 days after that date if the request was sent outside the United States. CITY OF IOWA CITY, IOWA /7 2 'O / By: tx-,v1 Date J Marian . Karr, City Clerk . K UNITED STATES DISTRICT COURT o SOUTHERN DISTRICT OF IOWA-DAVENPORT DIVISION 0 v- -T l HSIAOYUN HSU; KUNYING GUAN; ) � and JIAN XU, ) 3° rn ) No. 3:01 CV80070772 r Plaintiffs, ) .r, V. ) ) NOTICE OF LAWSUIT AND REQUEST CITY OF IOWA CITY; ) FOR WAIVER OF SERVICE OF R.J.WINKELHAKE, Chief of Police; ) SUMMONS JENNY CLARAHAN, Police Officer; ) and, COLIN FOWLER, Police Officer, ) ) Defendants. ) TO: City of Iowa City A lawsuit has been commenced against you. A copy of the complaint is attached to this notice. It has been filed in the United States District Court for the Southern District of Iowa and has been assigned docket number 3:01CV80070. This is not a formal summons or notification from the court, but rather my request that you sign and return the enclosed wavier of service in order to save the cost of serving you with a judicial summons and an additional copy of the complaint. The cost of service will be avoided if I received a signed copy of the waiver within 30 days after the date designated below as the date on which this Notice and Request is sent. I enclose a stamped and addressed envelope for your use. An extra copy of the waiver is also attached for your records. If you comply with this request and return the signed waiver, it will be filed with the court and no summons will be served on you. The action will then proceed as if you had been served on the date the waiver is filed, except that you will not be obligated to answer the complaint before 60 days from the date designated below as the date on which this notice is sent. If you do not return the signed waiver within the time indicated, I will take appropriate steps to effect formal service in a manner authorized by the Federal Rules of Civil Procedure and will then, to the extent authorized by those Rules, ask the court to require you to pay the full costs of such service. In that connection, please read the statement concerning the duty of parties to waive the service of the summons, which is set forth on the reverse side(or at the foot)of the wavier form. I affirm that this request is being sent to you on behalf of the plaintiff, this day of August, 2001. 4/ Nathaniel K.Hsieh,Atty. for Plaintiffs 111 West Washington Street, Suite 917 Chicago,IL 60602 (312)750-1345 (312)750-1347 Fax S Duty to Avoid Unnecessary Costs of Service of Summons Rule 4 of the Federal Rules of Civil Procedure requires certain parties to cooperate in saving unnecessary costs of service of the summons and complaint. A defendant located in the United States who, after being notified of an action and asked by a plaintiff located in the United States to waive service of a summons, fails to do so will be required to bear the cost of such service unless good cause be shown for its failure to sign and return the waiver. It is not good cause for a failure to waive service that a party believes that the complaint is unfounded, or that the action has been brought in an improper place or in a court that lacks jurisdiction over the subject matter of the action or over its person or property. A party who waives service of the summons retains all defenses and objections (except any relating to the summons or to the service of the summons), and may later object to the jurisdiction of the court or to the place where the action has been brought. A defendant who waives service must within the time specified on the wavier form serve on the plaintiffs' attorney a response to the complaint and must also file a signed copy of the response with the court. If the answer or motion is no served within this time, a default judgment may be taken against that defendant. By waiving service, a defendant is allowed more time to answer than if the summons had been actually served when the request for wavier of service was received. ra O re. -< rri w `� yam. crk FILED DAVENPORT, IOWA DI JUN -I PH I: I. IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DIS RICT OF IOWA CLERK U.S. iliSTRICi COURT Hsiaoyun Hsu, ) SOUTHERN DISTRICT (IF IOWA & ) Kunying Guan ) & ) Jian Xu ) ) Plaintiffs, ) 3 o .p c v p ® ® 7 v. ) Civial Action No. V CY ) City of Iowa City ) ) R. J. Winkelhake, Chief of Police, ) COMPLAINT UNDER _ o gz ) Section 1983 of 42 U.S.C. O o Jenny Clarahan, Police Officer ) D 0 & ) 0 — — Colin Fowler, Police Officer ) JURY TRIAL DEMANDED CD 1\3m m n' Defendants. ) D o m 1. This is a civil action seeking damages against Defendants for committing acts, under color of law, which deprived Plaintiffs of rights secured under the Constitution and laws of the United States; for conspiring for the purpose of impeding and hindering the due course of justice,with intent to deny Plaintiffs equal protection of laws; and for refusing or neglecting to prevent such deprivations and denials to Plaintiffs. The Court has jurisdiction of this action under 42 U.S.C. Section 1983 and 28 U.S.C. Section 1343. 2. The Court also has jurisdiction under 28 U.S.C. Section 1331. 3. Plaintiff Hsiaoyun Hsu is a lawful permanent resident of the Village of Westmont, State of Illinois, and the United States of America. 1 4. Plaintiff Kunying Guan, the mother of Plaintiff Hsiaoyun Hsu, is a citizen of the People's Republic of China and a temporary resident of the United States. 5. Plaintiff Jian Xu, the father of Hsiaoyun Hsu, is a citizen of the People's Republic of China and a temporary resident of the United States. 6. Defendant City of Iowa City is a Municipal Corporation, organized under the laws of the State of Iowa. 7. Defendant R. J. Winkelhake has served as Chief of Police for the City of Iowa City at all times relevant to the Complaint. 8. Defendants Jenny Clarahan and Colin Fowler were police officers employed by the Police Department of the City of Iowa City at all times relevant to this Complaint. 9. Plaintiffs sue each and all Defendants (except the City) in both their individual and official capacities. 10. At all times material to this Complaint, Defendants the City of Iowa City, Police Chief Winkelhake, Police Officer Fowler and Clarahan acted under color of the statutes, customs, ordinances, and usage of the State of Iowa, the City of Iowa City, and the Iowa N City Police Department. O D C) c C7 a —fl ▪r— COUNT COUNT I m m a o� 0 1. On or about September 11, 1999, at approximately 9:30 pm, Plaintiffs wereyithin it co • third-floor apartment with Plaintiff Hsiaoyun Hsu's one-year-old daughter located at 326 Finkbine Lane, Apartment 12,City of Iowa City. 2 2. Two days before, Plaintiffs Kunying Guan and Jian Xu, parents of Plaintiff Hsu,just arrived from Beijing, China. Both Plaintiffs are in their late sixties. They are retired college professors in Beijing. Both are new to the country and do not speak the English language. 3. Defendant Colin Fowler and other accompanying officers entered said apartment, told N Plaintiff Hsiaoyun Hsu she was under arrest, and refused to clarify to Plaits wlHsu > m was under arrest. n — r 4. At no time, after Defendant and other officers' entry to Plaintiffs' apartment 4d bore C? their departure, did Plaintiffs attempt to resist arrest or offer violence to tl>grn. oo 5. Without provocation, need, or explanation, Defendant and other accompanying officers wrestled and pushed Plaintiffs Guan and Xu to the ground, in the process, causing laceration, bruises, and extreme pain and shock to both. As a result of said injuries, Plaintiffs Guan and Xu incurred extreme pain and mental sufferings to the present day. 6. As a result of their concerted unlawful and malicious physical abuse of Plaintiffs Guan and Xu, Defendants Winkelhake and Fowler intentionally, or with deliberate indifference and callous disregard of Plaintiffs' rights, deprived Plaintiffs of their right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiffs Guan and Xu demand judgment against Defendants the City of Iowa City, Police Chief Winkelhake, Police Officer Fowler,jointly and severely, for compensatory 3 damages in the amount of$150,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $450,000, plus the costs of this action, attorney's fees, and such other relief as thccourt cams ➢- a -n just and equitable. n Pma rn 7; Count II D o co 1 - 6. Plaintiffs reallege paragraphs 1-6 of Count I as paragraphs 1-6 of Count II and hereby incorporates them as though fully set forth herein. 7. Plaintiff Hsu's witness of her parents' treatment by the arresting officers/defendants caused her extreme pain and mental anguish. Plaintiff Hsu had her one-year old daughter crying in her arm and her parents bleeding and crying about in the apartment. 8. Witnessing the physical abuse of her parents by Defendant Fowler and other accompanying officers, Plaintiff Hsu reacted by her attempt to explain the situation to her parents in Chinese so to calm them down. Such acts were interpreted as interference with official act. 9. Plaintiff Hsu was arrested by Defendant Fowler and other accompanying officers using unnecessary and excessive force. Plaintiff Hsu's child was forcibly taken away from her arms by one officer, and Plaintiff Hsu was forcibly pushed to the ground, face down, and handcuffed by Defendant Fowler or one other officer. When she was taken away from her apartment, Plaintiff Hsu merely had her T-shirt and pajamas on. 10. Plaintiff Hsu's arrest on September 11., 1999 lacked sufficient warrant. Her arrest by 4 Defendants was without reasonable grounds and was not afforded procedural due process. No complaint, information, or indictment was ever sworn against Plaintiff Hsu alleging offense(s) occurring prior to the moment when Defendant Fowler and other accompanying officers announced to Plaintiff that she was under arrest. No Miranda rights were read to her. 11. The unlawful arrest and the absence of the reading of Miranda rights to Plaintiff Hsu caused actions initiated by Plaintiff Hsu that was interpreted and charged by Defendants as interference with official act. Plaintiff Hsu was subsequently prosecuted and convicted on this charge. 12. As a result of their concerted unlawful and malicious arrest of Plaintiff Hsiaoyun Hsu, Defendants Winkelhake and Fowler deprived Plaintiff of her liberty without due process of law and deprived her of equal protection of the laws, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Fowler,jointly and severely, for compensatory damages in the amount of$250,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $750,000, plus the costs of this action, attorney's fees, and such other relief as thj.,ourt cg ms c just and equitable. n 1 _ II -H0 N n r— 11-1 p_ 5 y o co • Count III 1-12. Plaintiffs reallege paragraphs 1-6 of Count I and paragraphs 1-2 of Count II as paragraphs 1-12 of Count III and hereby incorporates them in this Count as though fully set forth herein. 13. Plaintiffs Guan and Xu were temporary visitors from China. They do not speak the English language. 14. The City of Iowa City is proud to be home to the University of Iowa which traditionally hosts a campus of international students and scholars and their families. 15. The unfortunate situations and the outrageous abuse and deprivation of individuals' rights and liberty as experienced by Plaintiffs and otherwise afforded by the Constitution of the United States and the laws of the State of Iowa can be easily avoided and prevented through less intruding and less confrontational alternatives, including for example, emergency language assistance at the local police department, and necessary sensitivity and language training to the Iowa City Police Department. 16. As a result of the absence or lack of cultural sensitivity training and the absence and lack of emergency language assistance at the Iowa City Police Department, Defendants deprived Plaintiffs of their liberty without due process of law and right to equal protection of the laws, in violation of the Fourth, Fifth and Fourteenth Amendment and the Commerce Clause of Article I of the United States Constitution. 0 >-If c WHEREFORE, Plaintiffs demand judgment against Defendants the City o5-3o va i y, - 0 N Police Chief Winkelhake, Police Officers Fowler and Clarahan,jointly and severe],rmr a Mo o 6 D o co compensatory damages in the amount of$250,000 against each of said Defendants,jointly and severally, plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable including the establishment of cultural sensitivity training and encs language assistance programs at the Iowa City Police Department. CJN r- m ).• . m Count IV D co 1-16. Plaintiffs reallege paragraphs 1-6 of Count I, paragraphs 1-12 of Count II and paragraphs 1-16 of Count III and hereby incorporate them in this Count as though fully set forth herein. 17. Plaintiff's arrest of September 11, 1999 was allegedly pursuant to a warrant of arrest of Plaintiff Hsu for fleeing the scene of an automobile accident which occurred on August 21, 1999, in Iowa City, Iowa. 18. At Plaintiff's ensuing misdemeanor trial concerning the fleeing the scene of an accident, Defendant Police Officer Jenny Clarahan testified in essence, 1). That Jason Paustien, operator of the other vehicle involved in Plaintiff's auto accident, contacted Defendant Clarahan initially, on August 21, 1999; 2). That Plaintiff Hsu had a conversation, albeit brief, with Mr. Paustien, at time and scene of the accident; 3). That Mr. Paustien even wrote down Plaintiff Hsu's vehicle license number; 4). That Defendant Clarahan's investigative visit to Plaintiffs home revealed that Plaintiff Hsu was cooperative about providing information concerning the accident. 7 19. Both Mr. Paustien and Plaintiff Hsu, all parties involved in the accident, had stated to Defendant Clarahan on two different occasions that Plaintiff Hsu and Mr. Paustien had indeed shared and exchanged identifying information with each other. 20. Defendant Clarahan still charged Plaintiff Hsu with fleeing the scene of an accident, contrary to the results of her own investigation which should have revealed the fact that Mr. Paustien, the other vehicle driver involved in the accident, was at fault for causing the accident,through his own admission. 21. When Plaintiff Hsu failed to sign the ticket for fleeing the scene of an accident, the Iowa 0 0 cr' City Police Department, through the initiation of Defendant Clarahan, initis c proceedings for Plaintiff Hsu's arrest. n C7 ro I— r<m a m 22. As a result of the groundless, unlawful and malicious prosecution of Plainitlsu, = 0 Defendants Winkelhake and Clarahan intentionally, or with deliberate indifferenced callous disregard of Plaintiff Hsu's rights, deprived her right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsiaoyun Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Clarahan,jointly and severely, for compensatory damages in the amount of$250,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $750,000, plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable. 8 • • • Count V 1-22 Plaintiffs reallege paragraphs 1-6 of Count I, paragraphs 1-12 of Count II, paragraphs 1- 16 of Count III, and paragraphs 1-22 of Count IV, and hereby incorporate them in this Count as though fully set forth herein. 23. At time of Plaintiff Hsu's arrest on September 11, 1999,Plaintiffs repeatedly demanded of Defendant Fowler and other arresting officers for explanation of the causes of Plaintiff Hsu's arrest and for production of a warrant; 24. Defendant Fowler never presented such a warrant as demanded by Plaintiffs and as required by law; 25. The warrant in question as demanded by Plaintiff Hsu did not exist or was not auth ozed O at time of Plaintiff Hsu's arrest; n 26. Plaintiff's arrest was therefore illegal and subsequent prosecution of her byq)endtntts i- T Fri constitute malicious prosecution of Plaintiff. D o kg 27. As a result of their concerted unlawful arrest and malicious prosecution of PlaintifED Hsiaoyun Hsu, Defendants City of Iowa City, Police Chief Winkelhake and Police Officer Fowler intentionally, or with deliberate indifference and callous disregard of Plaintiff Hsu's rights, deprived Plaintiff of her right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsiaoyun Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Fowler,jointly and severely, for compensatory 9 damages in the amount of$250,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of$750,000, plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable. Jury trial is demanded by Plaintiffs in this case. Very Respectfully Submitted, Nathaniel K. Hsieh Attorney for Plaintiffs Law Office of Nathaniel K. Hsieh 111 W. Washington St., Ste. 917 Chicago, IL 60602 (312) 750-1345; fax: (312) 750-1347 Email: xkx0001 a,aol.com _ N o xI_L n N m �w 3 D O� us- > o 10 AO 440 IMv 11010vmmona in a Civil Acl on Prtitett fitttg ptstrict Cllnurt SOUTHERN. DISTRICT OFIOWA HSIAOYUN HSU KUNYING GUAN SUMMONS IN A CIVIL ACTION JIAN Xu CASE NUMBER: Plaintiffs, �7 CITY OF IOWA CITY; R.J. : 0A, ti V !��g 0 0 7 0 WINKELHAKE, CHIEF OF POLICE; `� V l�j �/ JENNY CLARAHAN, POLICE OFFICER; AND COLIN FOWLER, POLICE OFFICER 0 0 Defendants. �n L -ll TO:Paw*One AMANa of WaneC) City of Iowa City rn s+ rn c/o Ernie Lehman, Mayor 02 410 E. Washington Street *-7\- o Iowa City, Iowa 52240 co YOU ARE HEREBY SUMMONED and required to file with the Clerk of this Court and serve upon PLAINTIFF'S ATTORNEY InaT•ane.eeraal) an answer to the complaint which is herewith served upon you,within " days after service of this summons upon you, exciusiv., of the day of service. if you fail to do so, Judgment by default will be taken against you for the relief demanded in the complaint. /. / CLERK • DATE/ BY DEPUTY CLERK FILED DAVENPORT, IOWA 01 JUS' -1 PM 1: I IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF IOWA COI CLERK ". Hsiaoyun Hsu, ) SOU r HEi (ii IOWA & ) Kunying Guan ) & ) Jian Xu ) ) 'r Plaintiffs, ) 3: 01 C t T 8 0 0 7 0 v. ) Civial Action No. i( C� ) City of Iowa City ) & ) R. J. Winkelhake, Chief of Police, ) COMPLAINT UNDER gz ) Section 1983 of 42 U.S.C. ?- Jenny Clarahan, Police Officer ) —74 --n & ) C7-< Colin Fowler,Police Officer ) JURY TRIAL DEMANDED 0 N I� Defendants. ) kg > CO 1. This is a civil action seeking damages against Defendants for committing acts, under color of law, which deprived Plaintiffs of rights secured under the Constitution and laws of the United States; for conspiring for the purpose of impeding and hindering the due course of justice, with intent to deny Plaintiffs equal protection of laws; and for refusing or neglecting to prevent such deprivations and denials to Plaintiffs. The Court has jurisdiction of this action under 42 U.S.C. Section 1983 and 28 U.S.C. Section 1343. 2. The Court also has jurisdiction under 28 U.S.C. Section 1331. 3. Plaintiff Hsiaoyun Hsu is a lawful permanent resident of the Village of Westmont, State of Illinois, and the United States of America. 1 4. Plaintiff Kunying Guan, the mother of Plaintiff Hsiaoyun Hsu, is a citizen of the People's Republic of China and a temporary resident of the United States. 5. Plaintiff Jian Xu, the father of Hsiaoyun Hsu, is a citizen of the People's Republic of China and a temporary resident of the United States. 6. Defendant City of Iowa City is a Municipal Corporation, organized under the laws of the State of Iowa. 7. Defendant R. J. Winkelhake has served as Chief of Police for the City of Iowa City at all times relevant to the Complaint. 8. Defendants Jenny Clarahan and Colin Fowler were police officers employed by the Police Department of the City of Iowa City at all times relevant to this Complaint. 9. Plaintiffs sue each and all Defendants(except the City) in both their individual and official capacities. 10. At all times material to this Complaint, Defendants the City of Iowa City, Police Chief Winkelhake, Police Officer Fowler and Clarahan acted under color of the statutes, customs,ordinances, and usage of the State of Iowa, the City of Iowa City, and the Iowa City Police Department. 0 =' Dn c -,n iv f- -7< COUNT Im a. +n • 1. On or about September 11, 1999, at approximately 9:30 pm, Plaintiffs wer ithin &ir co • third-floor apartment with Plaintiff Hsiaoyun Hsu's one-year-old daughter located at 326 Finkbine Lane, Apartment 12,.City of Iowa City. 2 2. Two days before, Plaintiffs Kunying Guan and Jian Xu, parents of Plaintiff Hsu,just arrived from Beijing, China. Both Plaintiffs are in their late sixties. They are retired college professors in Beijing. Both are new to the country and do not speak the English language. 3. Defendant Colin Fowler and other accompanying officers entered said apartment, told Plaintiff Hsiaoyun Hsu she was under arrest, and refused to clarify to Pla9F3 wlEHsu >'_ m was under arrest. n N 1= p 4. At no time, after Defendant and other officers' entry to Plaintiffs' apartm O g4d bktore o their departure, did Plaintiffs attempt to resist arrest or offer violence to dam. ac) 5. Without provocation, need,or explanation, Defendant and other accompanying officers wrestled and pushed Plaintiffs Guan and Xu to the ground, in the process, causing laceration, bruises, and extreme pain and shock to both. As a result of said injuries, Plaintiffs Guan and Xu incurred extreme pain and mental sufferings to the present day. 6. As a result of their concerted unlawful and malicious physical abuse of Plaintiffs Guan and Xu, Defendants Winkelhake and Fowler intentionally, or with deliberate indifference and callous disregard of Plaintiffs' rights, deprived Plaintiffs of their right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiffs Guan and Xu demand judgment against Defendants the City of Iowa City, Police Chief Winkelhake, Police Officer Fowler,jointly and severely, for compensatory 3 damages in the amount of$150,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $450,000, plus the costs of this action, attorney's fees, and such other relief as theEourt cams just and equitable. --- cr' N 0 _ tD Count I1 y o co 1 - 6. Plaintiffs reallege paragraphs 1-6 of Count I as paragraphs 1-6 of Count II and hereby incorporates them as though fully set forth herein. 7. Plaintiff Hsu's witness of her parents' treatment by the arresting officers/defendants caused her extreme pain and mental anguish. Plaintiff Hsu had her one-year old daughter crying in her arm and her parents bleeding and crying about in the apartment. 8. Witnessing the physical abuse of her parents by Defendant Fowler and other accompanying officers, Plaintiff Hsu reacted by her attempt to explain the situation to her parents in Chinese so to calm them down. Such acts were interpreted as interference with official act. 9. Plaintiff Hsu was arrested by Defendant Fowler and other accompanying officers using unnecessary and excessive force. Plaintiff Hsu's child was forcibly taken away from her arms by one officer, and Plaintiff Hsu was forcibly pushed to the ground, face down, and handcuffed by Defendant Fowler or one other officer. When she was taken away from her apartment, Plaintiff Hsu merely had her T-shirt and pajamas on. 10. Plaintiff Hsu's arrest on September 11, 1999 lacked sufficient warrant. Her arrest by 4 Defendants was without reasonable grounds and was not afforded procedural due process. No complaint, information, or indictment was ever sworn against Plaintiff Hsu alleging offense(s)occurring prior to the moment when Defendant Fowler and other accompanying officers announced to Plaintiff that she was under arrest. No Miranda rights were read to her. 11. The unlawful arrest and the absence of the reading of Miranda rights to Plaintiff Hsu caused actions initiated by Plaintiff Hsu that was interpreted and charged by Defendants as interference with official act. Plaintiff Hsu was subsequently prosecuted and convicted on this charge. 12. As a result of their concerted unlawful and malicious arrest of Plaintiff Hsiaoyun Hsu, Defendants Winkelhake and Fowler deprived Plaintiff of her liberty without due process of law and deprived her of equal protection of the laws, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Fowler,jointly and severely, for compensatory damages in the amount of$250,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $750,000,plus the costs of this action, attorney's fees, and such other relief as thUourt cans just and equitable. n _ T1 -=4• n N f n-1 a 5 o co • • Count III 1-12. Plaintiffs reallege paragraphs 1-6 of Count I and paragraphs 1-2 of Count II as paragraphs 1-12 of Count III and hereby incorporates them in this Count as though fully set forth herein. 13. Plaintiffs Guan and Xu were temporary visitors from China. They do not speak the English language. 14. The City of Iowa City is proud to be home to the University of Iowa which traditionally hosts a campus of international students and scholars and their families. 15. The unfortunate situations and the outrageous abuse and deprivation of individuals' rights and liberty as experienced by Plaintiffs and otherwise afforded by the Constitution of the United States and the laws of the State of Iowa can be easily avoided and prevented through less intruding and less confrontational alternatives, including for example, emergency language assistance at the local police department, and necessary sensitivity and language training to the Iowa City Police Department. 16. As a result of the absence or lack of cultural sensitivity training and the absence and lack of emergency language assistance at the Iowa City Police Department, Defendants deprived Plaintiffs of their liberty without due process of law and right to equal protection of the laws, in violation of the Fourth, Fifth and Fourteenth Amendment and the N G� Commerce Clause of Article I of the United States Constitution. > WHEREFORE, Plaintiffs demand judgment against Defendants the City etf7iewa( y, N Police Chief Winkelhake, Police Officers Fowler and Clarahan,jointly and severely,rrfor rn 6 co • • compensatory damages in the amount of$250,000 against each of said Defendants,jointly and severally, plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable including the establishment of cultural sensitivity training and a gcnc c > -I language assistance programs at the Iowa City Police Department. 0 Z m p. (7'1 .ro Count IV y' co 1-16. Plaintiffs reallege paragraphs 1-6 of Count I, paragraphs 1-12 of Count II and paragraphs 1-16 of Count III and hereby incorporate them in this Count as though fully set forth herein. 17. Plaintiff's arrest of September 11, 1999 was allegedly pursuant to a warrant of arrest of Plaintiff Hsu for fleeing the scene of an automobile accident which occurred on August 21, 1999, in Iowa City, Iowa. 18. At Plaintiff's ensuing misdemeanor trial concerning the fleeing the scene of an accident, Defendant Police Officer Jenny Clarahan testified in essence, 1). That Jason Paustien, operator of the other vehicle involved in Plaintiffs auto accident, contacted Defendant Clarahan initially, on August 21, 1999; 2). That Plaintiff Hsu had a conversation, albeit brief, with Mr. Paustien, at time and scene of the accident; 3). That Mr. Paustien even wrote down Plaintiff Hsu's vehicle license number; 4). That Defendant Clarahan's investigative visit to Plaintiffs home revealed that Plaintiff Hsu was cooperative about providing information concerning the accident. 7 4. • 19. Both Mr. Paustien and Plaintiff Hsu, all parties involved in the accident, had stated to Defendant Clarahan on two different occasions that Plaintiff Hsu and Mr. Paustien had indeed shared and exchanged identifying information with each other. 20. Defendant Clarahan still charged Plaintiff Hsu with fleeing the scene of an accident, contrary to the results of her own investigation which should have revealed the fact that Mr. Paustien, the other vehicle driver involved in the accident, was at fault for causing the accident,through his own admission. 21. When Plaintiff Hsu failed to sign the ticket for fleeing the scene of an accident, the Iowa o City Police Department, through the initiation of Defendant Clarahan, initis c_ it proceedings for Plaintiff Hsu's arrest. N �-- 22. As a result of thegroundless, unlawful and maliciousprosecution of Plain amu, � Defendants Winkelhake and Clarahan intentionally, or with deliberate indifference d callous disregard of Plaintiff Hsu's rights, deprived her right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the U.S. Constitution and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsiaoyun Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Clarahan,jointly and severely, for compensatory damages in the amount of$250,000 and further demands judgment against each of said Defendants (except the City),jointly and severally, for punitive damages in the amount of $750,000, plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable. 8 Count V 1-22 Plaintiffs reallege paragraphs 1-6 of Count I,paragraphs 1-12 of Count II, paragraphs 1- 16 of Count III, and paragraphs 1-22 of Count IV, and hereby incorporate them in this Count as though fully set forth herein. 23. At time of PlaintiffHsu's arrest on September 11, 1999,Plaintiffs repeatedly demanded of Defendant Fowler and other arresting officers for explanation of the causes of Plaintiff Hsu's arrest and for production of a warrant; 24. Defendant Fowler never presented such a warrant as demanded by Plaintiffs and as required by law; 25. The warrant in question as demanded by Plaintiff Hsu did not exist or was not authorized O at time of Plaintiff Hsu's arrest; >=- 26. Plaintiff's arrest was therefore illegal and subsequent prosecution of her b3Tartndwts 1 m m constitute malicious prosecution of Plaintiff. 0 27. As a result of their concerted unlawful arrest and malicious prosecution of Plaintiff o Hsiaoyun Hsu, Defendants City of Iowa City, Police Chief Winkelhake and Police Officer Fowler intentionally, or with deliberate indifference and callous disregard of Plaintiff Hsu's rights, deprived Plaintiff of her right to equal protection of the laws and impeded the due course of justice, in violation of the Fourth, Fifth and Fourteenth Amendments of the Constitution of the United States and 42 U.S.C. Section 1983. WHEREFORE, Plaintiff Hsiaoyun Hsu demands judgment against Defendants the City of Iowa City, Police Chief Winkelhake and Police Officer Fowler,jointly and severely, for compensatory 9 • damages in the amount of$250,000 and further demands judgment against each of said Defendants, jointly and severally, for punitive damages in the amount of$750,000,plus the costs of this action, attorney's fees, and such other relief as the Court deems just and equitable. Jury trial is demanded by Plaintiffs in this case. Very Respectfully Submitted, Nathaniel K. Hsieh Attorney for Plaintiffs Law Office of Nathaniel K. Hsieh 111 W. Washington St., Ste. 917 Chicago, IL 60602 (312) 750-1345; fax: (312) 750-1347 Email: xkx0001@aol.com L� > D up- CD 10 END OF CASE FILE NOTICE OF INTENTION TO COMMENCE LEGAL ACTION TO: City Council, City of Iowa City YOU ARE HEREBY NOTIFIED as required by Iowa Code Chapter 670 that Angela Hull and Callista Hull intend to commence legal action against you forthwith under Iowa Code Chapter 670 based on the following: 1. That on or about November 6, 2001 at approximately 5:30 p.m., Callista Hull sustained a personal injury at the Iowa City Public Library. 2. Angela Hull is the parent, guardian, and next friend of Callista Hull, a minor. 3. As a result of the said injury, both Angela Hull and Callista Hull sustained damages. 4. Said parties hereby demand from you monetary relief adequate to compensate them for their damages, including, but not limited to, medical expenses, lost wages, loss of consortium, pain (past,present, and future), and loss of bodily function (past,present, and future). Dated thisgday of November, 2001. ANGELA HULL d CALLISTA H r / r '-moi /7 By-f-. Craig 'e an #001623• Nierm. La. Office 216 S -ven• Drive Iowa k ity A 52240 (319) 341-0641 ATTORNEY FOR CLAIMANTS O ' 0 C3 > 1 CM. o D w a� JOHNSON COUNTY SHERIFF' S DEPARTMENT P.O. BOX 2540 IOWA CITY, IA 52244-2540 DATE: 11/30/01 ***** PROCESS SERVERS WORKSHEET ***** CP#: 000020018067 DOCKET: 000020018067 AGENCY: 000020018067 PLTF: HULL,ANGELA PROCESS TYPE: NOTICE VS. DFND: IOWA CITY PUBLIC LIBRARY AOR: 0007409 NIERMAN,L CRAIG AOR PHONE: 3193410641 COURT OF ORIGIN: NON COURT ACTION 'P#/PARTY : 000020018067-02 DATE ASSIGNED: 11/30/01 SERVER: 00001 UNASSIGNED SERVER ENTRY SERVE BY: 00/00/00 �J � �/ DATE: J3-c7 /TIME: / s) :AZARDS: SERVICE TYPE: C( 4--y CGo 1 t- PARTY: IOWA CITY CITY COUNCIL C ;{- C ter,<< : 410 E WASHINGTON ST G j.` BY SERVING: Y IOWA CITY IA ACE: HEIGHT: RACE: W HEIGHT: EIGHT: SEX: WEIGHT: SEX: 117 AIR: EYES : HAIR: EYES : DB: 00/00/00 SSN: DOB: HONE: SERVED AT: EMPLOYER: 4(o �' was Li,\03 CHICLE: YEAR: MAKE: MILEAGE l'" SERV FEE: 1S�c'\� MODEL: LIC PLATE:, STATE: MISC1 MISC2 DESCRIPTION: )MMENTS: DATE TIME SERVR REASON SThr S I GNAT UREC) i TE 2.2 of TITLE s�-- w -v 5 T D END OF CASE FILE • IN THE IOWA DISTRICT COURT OF JOHNSON COUNTY DLJ MORTGAGE 74-2885883 : CAPITAL INC. , • Plaintiff, : EQUITY NO. EQCV 062036 vs. • AMENDED ORIGINAL NOTICE • JAMES J. DIERICKX; • PAMELA S . DIERICKX; SOLON STATE BANK; • EQUITY ONE, INC. and • CITY OF IOWA CITY, IOWA, • Defendants . : TO THE ABOVE NAMED DEFENDANTS : You are notified there is a petition now on file in the office of the clerk of the above court . A copy of this filing is attached hereto. The Plaintiff' s attorneys are Petosa, Petosa, Boecker & Nervig, L.L. P. , by Theodore R. Boecker, whose address is 1350 nw 138th Street, Suite 100, Clive, Iowa 50325-8308 . The Plaintiff' s attorney' s phone number is (515) 222-9400, with a facsimile transmission number of (515) 222-9121 . You must serve a motion or answer, within 20 days after service of this original notice upon you and within a reasonable time thereafter file, a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, 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 1-319-398-3920, EXT. 200 . If you are hearing impaired, Call Relay Iowa TTY at 1-800-735-2942) . C±61 u_ ,O MA BERKLEY rk f the Above Court Johnson County Courthouse Iowa City, IA 52240 YOU ARE ADVISED OT SEEK LEGAL ADVISE AT ONCE TO PROTECT YOUR INTERESTS _ ry o rrl CD C c ---I C� o t-'_ DP. N lJ o IN THE IOWA DISTRICT COURT OF JOHNSON COUNTY DLJ MORTGAGE 74-2885883 : CAPITAL INC. , Plaintiff, : EQUITY NO. EQCV 062036 vs . • AMENDMENT TO PETITION JAMES J. DIERICKX; PAMELA S. DIERICKX; SOLON STATE BANK; • gr" EQUITY ONE, INC. and • i CITY OF IOWA CITY, IOWA, --T1 rri amu, . z Defendants . : s. zt C COMES NOW, the Plaintiff, DLJ Mortgage Capital I arg —.' amends its Petition in the above captioned matter filed August 28, 2001, and for reason therefore states to the Court : 1 . That City of Iowa City, Iowa is named as a party Defendant because of Case 06521ICSTIC107671 wherein judgment was entered against James Dierickx on July 23, 2001 . 2 . That except as amended herein, Plaintiff' s Petition filed August 28, 2001, is incorporated herein as though fully set forth. PETOSA, PETOSA, BOECKER & NERVIG, L.L. P. By 7G 47/ -4 l Theodore R. Boecker 1350 NW 138th Street, Suite 100 Clive, Iowa 50325-8308 (515) 222-9400 ATTORNEYS FOR PLAINTIFF Na O o _n -o Rl o i32 � CD o rn IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY DLJ MORTGAGE 74-2885883 : CAPITAL INC. , � Plaintiff, : EQUITY NO . � Ct1G vs . • ORIGINAL NOTICE JAMES J. DIERICKX; PAMELA S. DIERICKX; SOLON STATE BANK and •• EQUITY ONE, INC. , Defendants . : TO THE ABOVE NAMED DEFENDANTS : You are notified there is a petition now on file in the office of the clerk of the above court . A copy of this. filing is attached hereto. The Plaintiff ' s attorneys are Petosa, Petosa, Boecker & Nervig, L.L.P. , by Theodore R. Boecker, whose address is 1350 NW 138th Street, Suite 100, Clive, Iowa 50325-8308 . The Plaintiff' s attorney' s phone number is (515) 222-9400 , with a facsimile transmission number of (515) 222-9121 . You must serve a motion or answer, within 20 days after service of this original notice upon you and within a reasonable . time thereafter file, a motion or answer, in the Iowa District Court of Johnson County, at the county courthouse in Iowa City, 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, imme lately call your district ADA coordinator at V 'V{'31'JD E r (If you are hearing impaired, Call Relay Iowa TTY at 1-800-73 •42) .., LODEMA BERKLEY ' r)00404 ' Clerk of the Above Curt Johnson County Courtho .e Iowa City, Iowa 52240 C) YOU ARE ADVISED TO SEEK LEGAL ADVICE AT ONCE TO PROTECT YOUR INTERE -G m C) C) <,�'-, ":„.° ITl N D o . o, IN THE IOWA DISTRICT COURT FOR JOHNSON COUNTY F IL t^1 DLJ MORTGAGE 74-2885883 : Z`ifil-E128 Mi !O. 57 CAPITAL INC . , EQUITY NO. �{�yQ Plaintiff, : ����•J! t����L vs. PETITION JAMES J. DIERICKX; •• PAMELA S . DIERICKX; •• SOLON STATE BANK and EQUITY ONE, INC. , •• Defendants . : NOTICE THE PLAINTIFF HAS ELECTED FORECLOSURE WITHOUT REDEMPTION. THIS MEANS THAT THE SALE OF THE MORTGAGED PROPERTY WILL OCCUR PROMPTLY AFTER ENTRY OF JUDGMENT UNLESS YOU FILE WITH THE COURT A WRITTEN DEMAND TO DELAY THE SALE. IF YOU FILE A WRITTEN DEMAND, THE SALE WILL BE DELAYED UNTIL SIX MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS YOUR RESIDENCE AND IS A ONE-FAMILY OR TWO-FAMILY DWELLING OR UNTIL TWO MONTHS FROM ENTRY OF JUDGMENT IF THE MORTGAGED PROPERTY IS NOT YOUR RESIDENCE OR IS YOUR RESIDENCE BUT NOT A ONE-FAMILY OR TWO-FAMILY DWELLING. YOU WILL HAVE NO RIGHT OF REDEMPTION AFTER THE SALE. THE PURCHASER AT THE SALE WILL BE ENTITLED TO IMMEDIATE POSSESSION OF THE MORTGAGED PROPERTY. YOU MAY PURCHASE AT THE SALE. 0 0 cn ?�=-� 'v -T11 r- © � O ro Orl 1 The Plaintiff for cause of action states : 1 . That the Plaintiff, DLJ Mortgage Capital Inc. , is a corporation incorporated under the laws of the United States with its principal place of business in the State of New York. 2 . That on or about November 18, 1999, James J. Dierickx made, executed and delivered to Equity One, Inc . , his promissory note in writing for the sum of $92, 000 . 00 payable in installments, with interest at 9 . 64% per annum from date a copy of said note being attached hereto and made a part hereof as Exhibit "A" . 3 . That on or about November 18, 1999 in order to secure the payment of said note, the said James J. Dierickx and Pamela S . Dierickx made, executed and delivered to Equity One, Inc. , a real estate mortgage on the following described real estate, to-wit : Lot Three (3) , in Block Four (4) in Towncrest Addition to Iowa City, Iowa, according to the recorded plat thereof . which said mortgage was filed for record November 18, 1999 in Book 2864, page 287 in the Recorder ' s Office of Johnson County, Iowa, a copy of said mortgage being attached hereto and made a part hereof as Exhibit "B" . U 4 . That the above note and mortgage were subsequent�{? � it assigned to DLJ Mortgage Capital, Inc . , which is thesol grid X73 = absolute owner thereof . cv 5 . That Plaintiff is the sole and absolute owner of the c' mortgage above mentioned; that said note and mortgage provide 2 that if default be made at any time in payment of any installment of principal or interest, at the election of the Plaintiff, all indebtedness, without notice of such election, shall become immediately due and payable; that Plaintiff by reason of the failure of the mortgagor (s) to pay said installments, declares said note in default, that there is now due and owing Plaintiff the sum of $91, 684 . 96 with interest at 9 . 64% per annum from and including June 18, 2000, plus accrued late charges in the amount of $274 . 05 . 6 . That the Plaintiff has given the mortgagor (s) notice of the right to cure said default and to date has received no response thereto. That the time to cure the default under the statute has now expired. 7 . That said note and mortgage provide that if suit be commenced thereon, mortgagor (s) will pay reasonable attorneys ' fees; that an attorneys ' fee affidavit is attached hereto and made a part hereof as Exhibit "C" . 8 . That the Plaintiff mortgagee now hereby in writing waives any right or claim to a deficiency judgment against the mortgagor(s) . That the mortgaged property is the residence of the mortgagor (s) and is a one-family or two-family dwelling. Plaintiff hereby elects to foreclose without redemption and the sale of the mortgaged property shall occur promptly after entry of judgment, unless the mortgagor (s) , pursuant to the Ngice aet forth above, files a written demand to delay the sale, i'n=-whiff —j-� event the sale shall be delayed until six months after eiity 81 -173 judgment . 3 D o 9 . That the Plaintiff alleges that whatever right, title or interest in or lien upon said real estate said Defendants may have is junior to the right, title and interest of Plaintiff, by virtue of said mortgage, which this Plaintiff avers to be a prior lien upon said real estate, the rents and profits therefrom. 10 . That Equity State Bank is named as a party Defendant because of a mortgage dated November 18, 1999, executed by James J. Dierickx and Pamela S. Dierickx to Equity One, Inc . for $23, 000 . 00, which mortgage was filed November 18 , 1999, in Book 2864, page 295 in the Recorder' s Office of Johnson County, Iowa. 11 . That Solon State Bank is named as a party Defendant because of a mortgage dated February 5, 2001, executed by James J. Dierickx and Pamela S . Dierickx to Solon State Bank for $18, 182 .28 , which mortgage was filed February 12 , 2001, in Book 3036, page 167 in the Recorder ' s Office of Johnson County, Iowa. 12 . That in the event Plaintiff is required to advance additional sums for taxes, sewer rental, solid waste assessments or insurance on said real estate, the Plaintiff should b 5given an additional lien thereon for such amounts so advanced. > '`� — 1 c) 13 . That said mortgage provides that any time after:Vde o proper commencement of an action in foreclosure or duringp ry period of redemption, the Court having jurisdiction of thi case. shall, at the request of the mortgagee, appoint a receiver to take immediate possession of said property and of the rents and profits accruing therefrom, to rent the same as he may deem best for the interest of all parties concerned and shall be liable to account to the mortgagor (s) only for the net profits after 4 • • application of rents, issues and profits upon the cost of the expense of receivership and foreclosure and the indebtedness, charges and expenses hereby secured and herein mentioned. WHEREFORE THE PLAINTIFF PRAYS THE COURT: 1 . That the Plaintiff have judgment in rem against the property involved in this action for the amount of unpaid principal and interest on said note, as provided in said note and mortgage and for attorneys ' fees, abstract expense and costs . 2 . That a receiver be appointed immediately to take care of, manage, lease and collect the rents from said real estate, and to apply the same in payment of costs and expenses. of said receivership, repairs and expenses of said real estate, accrued and accruing taxes and special assessments, insurance premiums, and in partial payment of the judgment to be entered herein. 3 . That said judgment, together with interest, attorneys ' fees, abstract expense, costs and accruing costs be decreed a prior lien upon said real estate from the date of said mortgage, and that all rights, interests and equities of all Defendants to this suit be declared junior to the right , title and interest of the Plaintiff . 4 . That in the event Plaintiff is required to advance further sums for taxes or insurance premiums on said real estate, the Plaintiff should be given an additional lien thereon for such amounts so advanced. O 5 . That said mortgage be foreclosed and the Defend v equity of redemption be barred and foreclosed save as gua te4g. ;Tl by law. That special execution issue for the sale of saiteal 5 % ry o estate to satisfy said judgment, interest, attorney fees and costs . 6 . That the Plaintiff has elected foreclosure without redemption and the sale of the mortgaged property shall occur promptly after entry of judgment or in the alternative, if a written demand for delay is filed, the sale shall occur six months after entry of judgment . 7 . That Plaintiff be granted such further relief as may be just and equitable. PETOSA, PETOSA, BOECKER & NERVIG, L.L.P. By Theodore R. Boecker PK0000439 1359 NW 138th Street, Suite 100 Clive, Iowa 50325 Telephone : (515) 222-9400 Facsimile : (515) 222-9121 ATTORNEYS FOR PLAINTIFF RJ C) ^^ l J0 n :7{ Drol ni m C� CD o J 6 • • LOAN NO. 106135 NOTE NOVEMBER 18, 1999 WEST DES MOINES, IOWA [City] [State] 1208 ARTHUR ST, IOWA CITY, IOWA 52240 [Property Address] 1. BORROWER'S PROMISE TO PAY In return for a loan that I have received,I promise to pay U.S. $ 92,000.00 (this amount is called "principal"),plus interest,to the order of the Lender. The Lender is EQUITY ONE, INC. , A DELAWARE CORPORATION • I understand that the Lender may transfer this Note. The Lender or anyone who takes this Note by transfer and who is entitled to receive payments under this Note is called the"Note Holder." 2. INTEREST Interest will be charged on unpaid principal until the full amount of principal has been paid. I will pay interest at a yearly rate of 9.640 %. The interest rate required by this Section 2 is the rate I will pay both before and after any default described in Section 6(B)of this Note. 3. PAYMENTS (A)Time and Place of Payments I will pay principal and interest by making payments every month. I will make my monthly payments on the 18th day of each month beginning on DECEMBER, 1999 . I will make these payments every month until I have paid all of the principal and interest and any other charges described below that I may owe under this Note. My monthly payments will be applied to interest before principal. If, on NOVEMBER 18, 2029 , I still owe amounts under this Note,I will pay those amounts in full on that date, which is called the"Maturity Date." - I will make my monthly payments at 4949 PLEASANT STREET, #205, WEST DFS MOINES, IA 50266 or at a different place if required by the Note Holder. (B)Amount of Monthly Payments My monthly payment will be in the amount of U.S. $ 783.00 4. BORROWER'S RIGHT TO PREPAY I have the right to make payments of principal at any time before they are due. A payment of principal only is known as a"prepayment". When I make a prepayment,I will tell the Note Holder in writing that I am doing so. I may make a full prepayment or partial prepayments without paying any prepayment charge. The Note Holder will use all of my prepayments to reduce the amount of principal that I owe under this Note. If I make a partial prepayment, there will be no changes in the due date or in the amount of my monthly payment unless the Note Holder agrees in writing • to those changes. 5. LOAN CHARGES If a law,which applies to this loan and which sets maximum loan charges, is finally interpreted so that the interest or other loan charges collected or to be collected in connection with this loan exceed the permitted limits,then: (i) any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;and(ii)any sums already collected from me which exceeded permitted limits will be refunded to me. The Note Holder may choose to make this refund by reducing the principal I owe under this Note or by making a direct payment to me. If a refund reduces principal, the reduction will be treated as a partial prepayment. 6. BORROWER'S FAILURE TO PAY AS REQUIRED (A)Late Charge for Overdue Payments If the Note Holder has not received the full amount of any monthly payment by the end of 15 calendar days after the date it is due,I will pay a late charge to the Note Holder. The amount of the charge will be 5.0 0 % of my overdue payment of principal and interest. I will pay this late charge promptly but only once on each late payment. (B)Default If I do not pay the full amount of each monthly payment on the date it is due, I will be in default. (C)Notice of Default If I am in default,the Note Holder may send me a written notice telling me that if I do not pay the overdue amount by a certain date,the Note Holder may require me to pay immediately the full amount of principal which has not been paid and all the interest that I owe on that amount. That date must be at Ieast 30 days after the date on which the notice is delivered or mailed to me. (D) No Waiver By Note Holder nn Even if,at a time when I am in default,the Note Holder does not require me to pay immediately in full awe bed — above,the Note Holder will still have the right to do so if I am in default at a later time. (E)Payment of Note Holder's Costs and Expenses -0 71 If the Note Holder has required me to pay immediately in full as described above,the Note Holder will haFie the light-- to be paid back by me for all of its costs and expenses in enforcing this Note to the extent not prohibited by appl`rcablElaw. CD I Those expenses include,for example,reasonable attorneys'fees. 7. GIVING OF NOTICES Unless applicable law requires a different method, any notice that must be given to me under this Note we given N by delivering it or by mailing it by first class mail to me at the Property Address above or at a different addres)�sf I give p the Note Holder a notice of my different address. MULTISTATE FIXED RATE NOTE-Single Family-FNMA/FHLMC UNIFORM INSTRUMENT Form 3200 12/83 itwsatsi+me 4 53 51.11644 Pale t"r2 Amended 1191 II r F /. fl Any notice that must be given to the Note Holder under this Note will be given by mailing it by first class mail to the Note Holder at the address stated in Section 3(A) above or at a different address if I am given a notice of that different address. . S. OBLIGATIONS OF PERSONS UNDER THIS NOTE If more than one person signs this Note,each person is fully and personally obligated to keep all of the promises made in this Note,including the promise to pay the full amount owed. Any person who is a guarantor,surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor,surety or endorser of this Note,is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note. 9. WAIVERS I and any other person who has obligations under this Note waive the rights of presentment and notice of dishonor. "Presentment"means the right to require the Note Holder to demand payment of amounts due. "Notice of dishonor"means the right to require the Note Holder to give notice to other persons that amounts due have not been paid. 10. UNIFORM SECURED NOTE This Note is a uniform instrument with limited variations in some jurisdictions. In addition to the protections given to the Note Holder under this Note,a Mortgage,Deed of Trust or Security Deed(the"Security Instrument"),dated the same date as this Note, protects the Note Holder from possible losses which might result if I do not keep the promises which I make in this Note. That Security Instrument describes how and under what conditions I may be required to make immediate payment in full of all amounts I owe under this Note. Some of those conditions are described as follows: Transfer of the Property or a Beneficial Interest in Borrower. If all or any part of the Property or any interest in it is sold or transferred(or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person)without Lender's prior written consent,Lender may,at its option,require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option,Lender shall give Borrower notice of acceleration. The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument. If Borrower fails to pay these sums prior to the expiration of this period,Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. Borrower has executed and acknowledged receipt of pages 1 and 2 of this Note. WITNESS THE HAND(S)AND SEAL(S)OF THE UNDERSIGNED. ' (Seal) Borrower (Seal) Borrower S J2 •IC rower (Seal) (Seal) Borrower Borrower (Seal) (Seal) Borrower Borrower (Sign Original Only) PAY TO THE ORDER OF: c-- WITHOUT RECOURSE - a THIS „ .AYOF �fra.. • ,k-P EQUITY •• ; INC. BY: ��i c� LOUIS M. FRANZINI VIS PRBSI� o — � vs n C7 o ___ %� N • C3 a MULTISTATE FIXED RATE NOTE-Single Family-FNMA/FM-MC UNIFORM INSTRUMENT Form 3200 12/83 xwsonlIm 45351.11644 Pap 2 ors Amended 5/91 • PREPARED BY: EQUITY ONE, INC. ,I111nt� FILED NO. `S 4949 PLEASANT STREET, #205 E00K- =1. WEST DES MOINES, IA 50266 99 NOV 1811 PM 4: 41 JOHNSON COUNTY RECORDER LOAN NO. 106135 f 0' IOWA CITY.IOWA (01/449 [Space Above This Line For Recording Datal MORTGAGE THIS MORTGAGE("Security Instrument")is given on NOVEMBER 18, 1999 . The mortgagor is JAMES J DIERICKX AND PAMELA S DIERICKX, HUSBAND AND WIFE, AS JOINT TENANTS ("Borrower"). This Security Instrument is given to EQUITY ONE, INC. , A DELAWARE CORPORATION which is organized and existing under the laws of DELAWARE ,k , and whose address is 4949 PLEASANT. STREET, #205, WEST DES MOINES, IA 50x66 ("Lender"). Borrower owes Lender the principal sum of NINETY-TWO THOUSAND AND NO/100---- Dollars(U.S. $ 92,000.00 ). This debt is evidenced by Borrower's note dated the same date as this Security Instrument("Note"),which provides for monthly payments,with the full debt, if not paid earlier,due and payable on NOVEMBER 18, 2029. This Security Instrument secures to Lender: (a)the repayment of the debt evidenced by the Note,with interest,and all renewals,extensions and modifications of the Note; (b) the payment of all other sums,with interest,advanced under paragraph 7 to protect the security of this Security Instrument; and (c) the performance of Borrower's covenants and agreements under this Security Instrument and the Note. For this purpose, Borrower does hereby mortgage,grant and convey to Lender the following described property located in JOHNSON County,Iowa: LOT 3 IN BLOCK 4 IN TOWNCREST ADDITION TO IOWA CITY, IOWA, ACCORDING TO THE PLAT THEREOF. ry • . n v, 0 - � o FT1 LJ iV D a which has the address of 1208 ARTHUR ST, IOWA CITY (Street) (City) Iowa 52240 ("Property Address"); (Zip Code) TOGETHER WITH all the improvements now or hereafter erected on the property, and all easements, appurtenances,and fixtures now or hereafter a part of the property.All replacements and additions shall also be covered by this Security Instrument.All of the foregoing is referred to in this Security Instrument as the"Property." BORROWER COVENANTS that Borrower is lawfully seised of the estate hereby conveyed and has the right to mortgage, grant and convey the Property and that the Property is unencumbered, except for encumbrances of record. Borrower warrants and will defend generally the title to the Property against all claims and demands, subject to any encumbrances of record. THIS SECURITY INSTRUMENT combines uniform covenants for national use and non-uniform covenants with limited variations by jurisdiction to constitute a uniform security instrument covering real propertyi, UNIFORM COVENANTS. Borrower and Lender covenant and agree as follows: 1i 1.Payment of Principal and Interest; Prepayment and Late Charges. Borrower shall promptly pay when due the principal of and interest on the debt evidenced by the Note and any prepayment and late charges due under the Note. 2.Funds for Taxes and Insurance. Subject to applicable law or to a written waiver by Lender, Borrower shall pay to Lender on the day monthly payments are due under the Note,until the Note is paid in full,a sum("Funds")for:(a) yearly taxes and assessments which may attain priority over this Security Instrument as a lien on the Property; (b)yearly leasehold payments or ground rents on the Property, if any; (c)yearly hazard or property insurance premiums;(d)yearly flood IOWA-Single Family-FNMAJFHLMC UNIFORM INSTRUMENT 00 02 8 r1 Form 3016 9-90 ICGHP422733.P0.-]O,96 Pase 1 e(5 • insurance premiums, if any; (e) yearly mortgage insurance premiums, if any; and (f) any sums payable by Borrower to Lender, in accordance with the provisions of paragraph 8, in lieu of the payment of mortgage insurance premiums.These items are called"Escrow Items."Lender may,at any time,collect and hold Funds in an amount not to exceed the maximum amount a lender for a federally related mortgage loan may require for Borrower's escrow account under the federal Real Estate Settlement Procedures Act of 1974 as amended from time to time,12 U.S.C.Section 2601 et seq. ("RESPA"),unless another law that applies to the Funds sets a lesser amount. If so, Lender may, at any time, collect and hold Funds in an amount not to exceed the lesser amount. Lender may estimate the amount of Funds due on the basis of current data and reasonable estimates of expenditures of future Escrow Items or otherwise in accordance with applicable law. The Funds shall be held in an institution whose deposits are insured by a federal agency, instrumentality,or entity (including Lender,if Lender is such an institution)or in any Federal Home Loan Bank.Lender shall apply the Funds to pay the Escrow Items. Lender may not charge Borrower for holding and applying the Funds, annually analyzing the escrow account, or verifying the Escrow Items, unless Lender pays Borrower interest on the Funds and applicable law permits Lender to make such a charge. However, Lender may require Borrower to pay a one-time charge for an independent real estate tax reporting service used by Lender in connection with this loan, unless applicable law provides otherwise. Unless an agreement is made or applicable law requires interest to be paid, Lender shall not be required to pay Borrower any interest or earnings on the Funds. Borrower and Lender may agree in writing,however, that interest shall be paid on the Funds. Lender shall give to Borrower,without charge,an annual accounting of the Funds,showing credits and debits to the Funds and the purpose for which each debit to the Funds was made. The Funds are pledged as additional security for all sums secured by this Security Instrument. If the Funds held by Lender exceed the amounts permitted to be held by applicable law, Lender shall account to Borrower for the excess Funds in accordance with the requirements of applicable law. If the amount of the Funds held by Lender at any time is not sufficient to pay the Escrow Items when due, Lender may so notify Borrower in writing,and, in such case Borrower shall pay to Lender the amount necessary to make up the deficiency. Borrower shall make up the deficiency in no more than twelve monthly payments,at Lender's sole discretion. Upon payment in full of all sums secured by this Security Instrument,Lender shall promptly refund to Borrower any Funds held by Lender. If, under paragraph 21, Lender shall acquire or sell the Property, Lender, prior to the acquisition or sale of the Property,shall apply any Funds held by Lender at the time of acquisition or sale as a credit against the sums secured by this Security Instrument. 3. Application of Payments. Unless applicable law provides otherwise, all payments received by tender under paragraphs 1 and 2 shall be applied:first,to any prepayment charges due under the Note;second,to amounts payable under paragraph 2; third,to interest due; fourth,to principal due; and last,to any late charges due under the Note. 4.Charges;Liens.Borrower shall pay all taxes,assessments,charges,fines and impositions attributable to the Property • which may attain priority over this Security Instrument,and leasehold payments or ground rents,if any.Borrower shall pay these obligations in the manner provided in paragraph 2, or if not paid in that manner, Borrower shall pay them on time directly to the person owed payment.Borrower shall promptly furnish to Lender all notices of amounts to be paid under this paragraph. If Borrower makes these payments directly,Borrower shall promptly furnish to Lender receipts evidencing the payments. Borrower shall promptly discharge any lien which has priority over this Security Instrument unless Borrower:(a)agrees in writing to the payment of the obligation secured by the lien in a manner acceptable to Lender; (b)contests in good faith the lien by,or defends against enforcement of the lien in,legal proceedings which in the Lender's opinion operate to prevent the enforcement of the lien;or(c)secures from the holder of the lien an agreement satisfactory to Lender subordinating the lien to this Security Instrument. If Lender determines that any part of the Property is subject to a lien which may attain priority over this Security Instmnwnt,Lender may give Borrower a notice identifying the lien. Borrower shall satisfy the lien or take one or more of the actions set forth above within 10 days of the giving of notice. 5. Hazard or Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire,hazards included within the term"extended coverage"and any other hazards,including floods or flooding, for which Lender requires insurance. This insurance shall be maintained in the amounts and for the periods that Lender requires.The insurance carrier providing the insurance shall be chosen by Borrower subject to Lender's approval which shall not be unreasonably withheld.If Borrower fails to maintain coverage described above, Lender may, at Lender's option,obtain coverage to protect Lender's rights in the Property in accordance with paragraph 7. All insurance policies and renewals shall be acceptable to Lender and shall include a standard mortgage clause. Lender shall have the right to hold the policies and renewals.If Lender requires,Borrower shall promptly give to Lender all receipts of paid premiums and renewal notices.In the event of loss,Borrower shall give prompt notice to the insurance carrier and Lender. Lender may make proof of loss if not made promptly by Borrower. Unless Lender and Borrower otherwise agree in writing,insurance proceeds shall be applied to restoration or repair of the Property damaged, if the restoration or repair is economically feasible and Lender's security is not lessened. If the restoration or repair is not economically feasible or Lender's security would be lessened,the insurance proceeds shall be applied to the sums secured by this Security Instrument, whether or not then due, with any excess paid to Borrower. If Borrower abandons the Property, or does not answer within 30 days a notice from Lender that the insurance carrier has offered to settle a claim,then Lender may collect the insurance proceeds. Lender may use the proceeds to repair or restore the Property or to pay sums secured by this Security Instrument,whether or not then due.The 30-day period will begin when the notice is given. r� Unless Lender and Borrower otherwise agree in writing, any application of proceeds to principal shallext end os postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of the . .1 • under paragraph 21 the Property is acquired by Lender, Borrower's right to any insurance policies and procetr ltingr -11from damage to the Property prior to the acquisition shall pass to Lender to the extent of the sums secured by this Security- Instrument immediately prior to the acquisition. (-) — '— 6.Occupancy, Preservation,Maintenance and Protection of the Property;Borrower's Loan Application;Tcase�1olds. Borrower shall occupy,establish,and use the Property as Borrower's principal residence within sixty days after they iicution-� of this Security Instrument and shall continue to occupy the Property as Borrower's principal residence for at least_ol+r4-year a: C after the date of occupancy, -,i p cy, unless Lender otherwise agrees in writing,which consent shall not be unreasonably wt�eld, or unless extenuating circumstances exist which are beyond Borrower's control.Borrower shall not destroy,d.rrre or 3> IOWA-Single Family-FNMA/FHLMC UNIFORM INSTRUMENT• Form 3016 9-90 ICC-HP477/74.PC410/96 eye 2 of 3 000288 impair the Property, allow the Property to deteriorate,or commit waste on the Property.Borrower shall be in default if any forfeiture action or proceeding, whether civil or criminal,is begun that in Lender's good faith judgment could result in forfeiture of the Property or otherwise materially impair the lien created by this Security Instrument or Lender's security interest. Borrower may cure such a default and reinstate,as provided in paragraph 18,by causing the action or proceeding to be dismissed with a ruling that,in Lender's good faith determination,precludes forfeiture of the Borrower's interest in the Property or other material impairment of the lien created by this Security Instrument or Lender's security interest. Borrower shall also be in default if Borrower, during the loan application process, gave materially false or inaccurate information or statements to Lender(or failed to provide Lender with any material information)in connection with the loan evidenced by the Note,including,but not limited to,representations concerning Borrower's occupancy of the Property as a principal residence.If this Security Instrument is on a leasehold,Borrower shall comply with all the provisions of the lease. If Borrower acquires fee title to the Property, the leasehold and the fee title than not merge unless Lender agrees to the merger in writing. 7. Protection of Lender's Rights in the Property. If Borrower fails to perform the covenants and agreements contained in this Security Instrument, or there is a legal proceeding that may significantly affect Lender's rights in the Property(such as a proceeding in bankruptcy,probate, for condemnation or forfeiture or to enforce laws or regulations), then Lender may do and pay for whatever is necessary to protect the value of the Property and Lender's rights in the Property.Lender's actions may include paying any sums secured by a lien which has priority over this Security Instrument, appearing in court,paying reasonable attorneys'fees and entering on the Property to make repairs.Although Lender may take action under this paragraph 7,Lender does not have to do so. Any amounts disbursed by Lender under this paragraph 7 shall become additional debt of Borrower secured by this Security Instrument. Unless Borrower and Lender agree to other terms of payment, these amounts shall bear interest from the date of disbursement at the Note rate and shall be payable,with interest,upon notice from Lender to Borrower requesting payment. 8.Mortgage Insurance. If Lender required mortgage insurance as a condition of making the loan secured by this Security Instrument, Borrower shall pay the premiums required to maintain the mortgage insurance in effect. If, for any reason, the mortgage insurance coverage required by Lender lapses or ceases to be in effect, Borrower shall pay the premiums required to obtain coverage substantially equivalent to the mortgage insurance previously in effect, at a cost substantially equivalent to the cost to Borrower of the mortgage insurance previously in effect, from an alternate mortgage insurer approved by Lender. Ifsubstantially equivalent mortgage insurance coverage is not available,Borrower shall pay to Lender each month a sum equal to one-twelfth of the yearly mortgage insurance premium being paid by Borrower when the insurance coverage lapsed or ceased to be in effect. Lender will accept,use and retain these payments as a loss reserve in lieu of mortgage insurance. Loss reserve payments may no longer be required, at the option of Lender, if mortgage insurance coverage(in the amount and for the period that Lender requires)provided by an insurer approved by Lender again becomes available and is obtained.Borrower shall pay the premiums required to maintain mortgage insurance in effect, or to provide a loss reserve, until the requirement for mortgage insurance ends in accordance with any written agreement between Borrower and Lender or applicable law. 9.Inspection.Lender or its agent may make reasonable entries upon inspections of the Property.Lender shall give Borrower notice at the time of or prior to an inspection specifying reasonable cause for the inspection. • 10.Condemnation.The proceeds of any award or claim for damages, direct or consequential,in connection with any condemnation or other taking of any part of the Property, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Security Instrument,whether or not then due, with any excess paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is equal to or greater than the amount of the sums secured by this Security Instrument immediately before the taking,unless Borrower and Lender otherwise agree in writing, the sums secured by this Security Instrument shall be reduced by the amount of the proceeds multiplied by the following fraction:(a)the total amount of the sums secured immediately before the taking,divided by(b)the fair market value of the Property immediately before the taking. Any balance shall be paid to Borrower. In the event of a partial taking of the Property in which the fair market value of the Property immediately before the taking is less than the amount of the sums secured immediately before the taking,unless Borrower and Lender otherwise agree in writing or unless applicable law otherwise provides,the proceeds shall be applied to the sums secured by this Security Instrument whether or not the sums are then due. If the Property is abandoned by Borrower,or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages,Borrower fails to respond to Lender within 30 days after the date the notice is given,Lender is authorized to collect and apply the proceeds,at its option,either to restoration or repair of the Property or to the sums secured by this Security Instrument,whether not then due. Unless Lender and Borrower otherwise agree in writing,any application of proceeds to principal shall not extend or postpone the due date of the monthly payments referred to in paragraphs 1 and 2 or change the amount of such payments. 11. Borrower Not Released; Forbearance By Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to any successor in interest of Borrower shall not operate to release the liability of the original Borrower or Borrower's successors in interest.Lender shall not be required to commence proceedings against any successor in interest or refuse to extend time for payment ori, otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made be originak Borrower or Borrower's successors in interest. Any forbearance by Lender in exercising any right or remedtliall not be-- a waiver of or preclude the exercise of any right or remedy. - ,0 12.Successors and Assigns Bound;Joint and Several Liability;Co-signers.The covenants and agreetfients 9f this-7.J 71 1 Security Instrument shall bind and benefit the successors and assigns of Lender and Borrower, subject to the pf?yi ions o£--- paragraph 17. Borrower's covenants and agreements shall be joint and several..Any Borrower who co-signs.this(Security[) Instrument but does not execute the Note:(a)is co-signing this Security Instrument only to mortgage,grant and-coif'that Ert Borrower's interest in the Property under the terms of this Security Instrument;(b) is not personally obligated_td-flay the-r. .sums secured by this Security Instrument;and(c)agrees that Lender and any other Borrower may agree to extell t,=i tdify, forbear or make any accommodations with regard to the terms of this Security Instrument or the Note*i'thout that Borrower's consent. D IOWA-Single Family•FNMA/FELMC UNIFORM INSTRUMENT000289 Form 3016 9-90 ICC•ePrxzns.PCL•toroe Page 3 of s • 13. Loan Charges. If the loan secured by this Security Instrument is subject to a law which sets maximum loan charges,and that law is finally interpreted so that the interest or other loan charges collected or to be collected in connection with the loan exceed the permitted limits,then:(a)any such loan charge shall be reduced by the amount necessary to reduce the charge to the permitted limit;and(b) any sums already collected from Borrower which exceeded permitted limits will be refunded to Borrower. Lender may choose to make this refund by reducing the principal owed under the Note or by making a direct payment to Borrower. If a refund reduces principal,the reduction will be treated as a partial prepayment without any prepayment charge under the Note. 14. Notices.Any notice to Borrower provided for in this Security Instrument shall be given by delivering it or by mailing it by first class mail unless applicable law requires use of another method. The notice shall be directed to the Property Address or any other address Borrower designates by notice to Lender.Any notice to Lender shall be given by first class mail to Lender's address stated herein or any other address Lender designates by notice to Borrower. Any notice provided for in this Security Instrument shall be deemed to have been given to Borrower or Lender when given as provided in this paragraph. 15. Governing Law; Severability.This Security Instrument shall be governed by federal law and the law of the jurisdiction in which the Property is located.In the event that any provision or clause of this Security Instrument or the Note conflicts with applicable law,such conflict shall not affect other provisions of this Security Instrument or the Note which can be given effect without the conflicting provision.To this end the provisions of this Security Instrument and the Note are declared to be severable. 16.Borrower's Copy.Borrower shall be given one conformed copy of the Note and of this Security Instrument. 17.Transfer of the Property or a Beneficial Interest in Borrower.If all or any part of the Property or any interest in it is sold or transferred(or if a beneficial interest in Borrower is sold or transferred and Borrower is not a natural person) without Lender's prior written consent, Lender may, at its option, require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not he exercised by Lender if exercise is prohibited by federal law as of the date of this Security Instrument. If Lender exercises this option,Lender shall give Borrower notice of acceleration.The notice shall provide a period of not less than 30 days from the date the notice is delivered or mailed within which Borrower must pay all sums secured by this Security Instrument.If Borrower fails to pay these sums prior to the expiration of this period, Lender may invoke any remedies permitted by this Security Instrument without further notice or demand on Borrower. 18. Borrower's Right to Reinstate. If Borrower meets certain conditions, Borrower shall have the right to have enforcement of this Security Instrument discontinued at any time prior to the earlier of: (a) 5 days(or such other period as applicable law may specify for reinstatement)before sale of the Property pursuant to any power of sale contained in this Security Instrument;or(b)entry of a judgment enforcing this Security Instrument. Those conditions are that Borrower:(a) pays Lender all sums which then would be due under this Security Instrument and the Note as if no acceleration had occurred;(b)cures any default of any other covenants or agreements;(c)pays all expenses incurred in enforcing this Security Instrument, including,but not limited to, reasonable attorneys' fees; and(d) takes such action as Lender may reasonably require to assure that the lien of this Security Instrument,Lender's rights in the Property and Borrower's obligation to pay the sums secured by this Security Instrument shall continue unchanged. Upon reinstatement by Borrower, this Security Instrument and the obligations secured hereby shall remain fully effective as if no acceleration had occurred. However,this right to reinstate shall not apply in the case of acceleration under paragraph 17. 19. Sale of Note;Change of Loan Servicer.The Note or a partial interest in the Note(together with this Security Instrument)may be sold one or more times without prior notice to Borrower. A sale may result in a change in the entity (known as the"Loan Servicer")that collects monthly payments due under the Note and this Security Instrument.There also may be one or more changes of the Loan Servicer unrelated to a sale of the Note.If there is a change of the Loan Servicer, Borrower will be given written notice of the change in accordance with paragraph 14 above and applicable law.The notice will state the name and address of the new Loan Servicer and the address to which payments should be made. The notice will also contain any other information required by applicable law. 20. Hazardous Substances. Borrower shall not cause or permit the presence,use, disposal, storage,or release of any Hazardous Substances on or in the Property.Borrower shall not do,nor allow anyone else to do, anything affecting the Property that is in violation of any Environmental Law. The preceding two sentences shall not apply to the presence,use, or storage on the Property of small quantities of Hazardous Substances that are generally recognized to be appropriate to normal residential use and to maintenance of the Property. Borrower shall promptly give Lender written notice of any investigation,claim, demand, lawsuit or other action by any governmental or regulatory agency or private party involving the Property and any Hazardous Substance or Environmental Law of which Borrower has actual knowledge. If Borrower learns, or is notified by any governmental or regulatory authority,that any removal or other remediation of any Hazardous Substance affecting the Property is necessary, Borrower shall promptly take all necessary remedial actions in accordance with Environmental Law. As used in this paragraph 20,"Hazardous Substances"are those substances defined as toxic or hazardous substances by Environmental Law and the following substances:gasoline,kerosene,other flammable or toxic petroleum products,toxic pesticides and herbicides,volatile solvents,materials containing asbestos or formaldehyde,and radioactive materials.As used ry in this paragraph 20, "Environmental Law' means federal laws and laws of the jurisdiction where the Property ec ocated • that relate to health,safety or environmental protection. n V) NON-UNIFORM COVENANTS. Borrower and Lender further covenant and agree as follows: > -=, r-r1 21.Acceleration;Remedies.Lender shall give notice to Borrower prior to acceleration following Borrower's bxh "1:7 1 of any covenant or agreement in this Security Instrument(but not prior to acceleration under paragraph 17 unless applicable — 7 law provides otherwise).The notice shall specify:(a)the default;(b)the action required to cure the default;(c)a-date,not rTt less than 30 days from the date the notice is given to Borrower,by which the default must be cured;and(d)thaffailane•to –0 ( t t cure the default on or before the date specified in the notice may result in acceleration of the sums secured by thilAxairtty = 0 Instrument,foreclosure by judicial proceeding and sale of the Property.The notice shall further inform Borrower o ;rightN to reinstate after acceleration and the right to assert in the foreclosure proceeding the non-existence of a default or other "" defense of Borrower to acceleration and foreclosure.If the default is not cured on or before the date specified in notice, O Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further `l demand and may foreclose this Security Instrument by judicial proceeding.Lender shall be entitled to collect all expenses incurred in pursuing the remedies provided in this paragraph 21,including,but not limited to,reasonable attorneys'fees and costs of title evidence. IOWA-Single Family-FNMA/FAL/AC UNIFORM INSTRUMENT Form 3016 9-90 ICO .PCL., Page 4of 5 000290 • 22. Release. Upon payment of all sums secured by this Security Instrument, Lender shall release this Security Instrument without charge to Borrower. 23. Waivers.Borrower relinquishes all right of power and waives all right of homestead and distributive share in and to the Property. Borrower waives any right of exemption as to the Property. 24.Redemption Period.If the Property is less than 10 acres in size and Lender waives in any foreclosure proceeding any right to a deficiency judgement against Borrower, the period of redemption from judicial sale shall be reduced to 6 months. If the court finds that the Property has been abandoned by Borrower and Lender waives any right to a deficiency judgement against Borrower, the period of redemptions from judicial sale shall be reduced to 60 days. The provisions of this paragraph 24 shall be construed to conform to the provisions of Sections 628.26 and 628.27 of the Code of Iowa. 25.Riders to this Security Instrument.If one or more riders are executed by Borrower and recorded together with this Security Instrument, the covenants and agreements of each rider shall be incorporated into and shall amend and supplement the covenants and agreements of this Security Instrument as if the rider(s)were a part of this Security Instrument. [Check applicable box(es)] ❑Adjustable Rate Rider 0 Condominium Rider ®14 Family Rider ❑Graduated Payment Rider ❑Planned Unit Development Rider 0 Biweekly Payment Rider ❑Balloon Rider 0 Rate Improvement Rider 0 Second Home Rider ❑Other(s)[specify] [THIS SPACE INTENTIONALLY LEFT BLANK] BY SIGNING BELOW, Borrower accepts and agrees to the terms and covenants contained in this Security Instrument and in any rider(s)executed by Borrower and recorded with it. Witnesses: , (Seal) (Seal) S D RICKK Borrower Borrower So ial Security Social Security (Seal) (Seal) PAMELA 'S DIER R$ Borrower Borrower Social Security Social Security (Seal) (Seal) Borrower Borrower Social Security • Social Security (Space Below This Line For Acknowledgement] • tv • (75 o -I C o r— . m • 0 � o • IOWA-Single Family-FNMA/FM-MC UNIFORM INSTRUMENT Form 3016 9.90 ICGNr422737.10196 rage S of 5 000291 • STATE OF IOWA JoLAn5orl County ss: On this 18thday of NOVEMBER, 1999 ,before me, a Notary Public in the Stat of Iowa,personally appeared JAMES J DIERICKX AND PAMELA S DIERICKX to me personally known to be the person(s)named in and who executed the foregoing instrument,and acknowledged that THEY executed the same as THEIR voluntary act and deed. • My CXJmis�inn expp�ttreess k, LAURIE A-MELLINGER 14110,11C hitePltril/ 188304 NotaryPublic in the State of Iowa U • �In • My Commission Expires January 17,2000 (Space Below This Line Reserved For Lender and Recorder) • _Q c:=3 Q O rn m o • • 000292 NOTARYIA.HP4-10/96 Pas 3016 990 WHEN RECORDED MAIL TO: EQUITY ONE, INC. 4949 PLEASANT STREET, #205 WEST DES MOINES, IA 50266 _ ry O et= fl rn C7 [Space Above This Line For Recording Data] J —El Fri ,0 LOAN NO. 106135 1-4 FAMILY RIDER -"` FV (Assignment of Rents) > p THIS 1-4 FAMILY RIDER is made this 18th day of NOVEMBER, 1999 , and is incorporated into and shall be deemed to amend and supplement the Mortgage,Deed of Trust or Security Deed(the"Security Instrument")of the same date given by the undersigned(the"Borrower")to secure Borrower's Note to EQUITY ONE, INC. , A DELAWARE CORPORATION (the"Lender")of the same date and covering the Property described in the Security Instrument and located at: 1208 ARTHUR ST IOWA CITY, IOWA 52240 [Property Address] 1-4 FAMILY COVENANTS. In addition to the covenants and agreements made in the Security Instrument, Borrower and Lender further covenant and agree as follows: A.ADDITIONAL PROPERTY SUBJECT TO'11th SECURITY INSTRUMENT. In addition to the Property described in the Security Instrument,the following items are added to the Property description,and shall also constitute the Property covered by the Security Instrument:building materials,appliances and goods of every nature whatsoever now or hereafter located in,on,or used,or intended to be used in connection with the Property,including,but not limited to,those for the purposes of supplying or distributing heating, cooling, electricity,gas, water, air and light, fire prevention and extinguishing apparatus, security and access control apparatus, plumbing, bath tubs, water heaters, water closets, sinks, ranges,stoves,refrigerators,dishwashers,disposals,washers,dryers,awnings,storm windows,storm doors,screens,blinds, shades,curtains and curtain rods,attached mirrors,cabinets,panelling and attached floor coverings now or hereafter attached to the Property,all of which,including replacements and additions thereto,shall be deemed to be and remain a part of the Property covered by the Security Instrument. All of the foregoing together with the Property described in the Security Instrument(or the leasehold estate if the Security Instrument is on a leasehold)are referred to in this 1-4 Family Rider and Security Instrument as the"Property" B.USE OF PROPERTY; COMPLIANCE WITH LAW. Borrower shall not seek, agree to or make a change in the use of the Property or its zoning classification,unless Lender has agreed in writing to the change. Borrower shall comply with all laws,ordinances,regulations and requirements of any governmental body applicable to the Property. C.SUBORDINATE LIENS.Except as permitted by federal law,Borrower shall not allow any lien inferior to the Security Instrument to be perfected against the Property without Lender's prior written permission. D.RENT LOSS INSURANCE.Borrower shall maintain insurance against rent loss in addition to the other hazards for which insurance is required by Uniform Covenant 5. E. "BORROWER'S RIGHT TO REINSTATE"DELETED. Uniform Covenant 18 is deleted. F.BORROWER'S OCCUPANCY.The first sentence in Uniform Covenant 6 concerning Borrower's occupancy of the Property is deleted.All remaining covenants and agreements set forth in Uniform Covenant 6 shall remain in effect. G.ASSIGNMENT OF LEASES.Upon default by the Borrower, Lender shall become the assignee of all leases of the Property and all security deposits made in connection with leases of the Property. Upon default,Lender shall have the right to modify,extend or terminate the existing leases and to execute new leases,in Lender's sole discretion. As used in this paragraph G,the word "lease"shall mean"sublease" if the Security Instrument is on a leasehold. H. ASSIGNMENT OF RENTS;APPOINTMENT OF RECEIVER;LENDER IN POSSESSION. Borrower absolutely and unconditionally assigns and transfers to Lender all the rents and revenues("Rents")of the Property,regardless of to whom the Rents of the Property are payable.Borrower authorizes Lender or Lender's agents to collect the Rents,and agrees that each tenant of the Property shall pay the Rents to Lender or Lender's agents.However, Borrower shall receive the Rents until(i) Lender has given Borrower notice of default pursuant to paragraph 21 of the Security Instrument and (ii)Lender has given notice to the tenant(s)that the Rents are to be paid to Lender or Lender's agent.This assignment of Rents constitutes an absolute assignment and not an assignment for additional security only. If Lender gives notice of breach to Borrower: (i) all Rents received by Borrower shall be held by Borrower as trustee for the benefit of Lender only, to be applied to the sums secured by the Security Instrument;(ii)Lender shall be entitled to collect and receive all of the Rents of the Property;(iii)Borrower agrees that each tenant of the Property shall pay all Rents due and unpaid to Lender or Lender's agents upon Lender's written demand to the tenant;(iv)unless applicable law provides otherwise,all Rents collected by Lender or Lender's agents shall be applied first to the costs of taking control of and managing the Property and collecting the Rents, including, but not limited to, attorney's fees, receiver's fees, premiums on receiver's bonds,repair and maintenance costs, insurance premiums,taxes,assessments and other charges on the Property, and then to the sums secured by the Security Instrument; (v) Lender, Lender's agents or any judicially appointed receiver shall be liable to account for only those Rents actually received; and(vi)Lender shall be entitled to have a receiver appointed to take possession of and manage the Property and collect the Rents and profits derived from the Property without any showing as to the inadequacy of the Property as security. MULTISTATE RIDER-14 Family-FNMAIFHLMC MODIFIED INSTRUMENT Form 3170(9190) lommman,M Pipe I ort 000293 • If the Rents of the Property are not sufficient to cover the costs of taking control of and managing the Property and of collecting the Rents any funds expended by Lender for such purposes shall become indebtedness of Borrower to Lender secured by the Security Instrument pursuant to Uniform Covenant 7. Borrower represents and warrants that Borrower has not executed any prior assignment of the Rents and has not and will not perform any act that would prevent Lender from exercising its rights under this paragraph. Lender, or Lender's agents or a judicially appointed receiver,shall not be required to enter upon, take control of or maintain the Property before or after giving notice of default to Borrower. However, Lender, or Lender's agents or a judicially appointed receiver,may do so at any time when a default occurs. Any application of Rents shall not cure or waive any default or invalidate any other right or remedy of Lender.This assignment of Rents of the Property shall terminate when all the sums secured by the Security Instrument are paid in full. L CROSS-DEFAULT PROVISION.Borrower's default or breach under any note or agreement in which Lender has an interest shall be a breach under the Security Instrument and Lender may invoke any of the remedies permitted by Security Instrument. BY SIGNING 1ELOW, Borrower accepts and agrees to the terms and provisions contained in this 1-4 Family ••.der. ,L$LA ionk Seal (Seal) `�f S J i I RIC T'- Borrower Borrower ""`T+- a_ J/2 (Seal) (Seal) PAMELA S DIERICKX Borrower Borrower (Seal? (Seal) Borrower Borrower • • • _ 0 >- o r rn rn -a I N � o CO • MULTISTATE RIDER-1-4 Family-FNMA/FHLMC MODIFIED INSTRUMENT Form 3170(9190) ICP061.3.EQY•1198 Pap 2 of 2 000234 AFFIDAVIT N STATE OF IOWA ) Q ) SS �C7 � q3-1COUNTY OF POLK ) —7 m • CD �-- I, Theodore R. Boecker, being first duly sworn, upai;_oat, FYI depose and state that I am one of the attorneys for the Z aini.iff D CD in this cause; that I am a regular practicing attorney engagedoin this case; that there has been no agreement, express or implied, between myself and my client, or between myself and any other person except attorneys associated with me in this case, for any sharing or division of the attorney fees to be taxed herein. I further depose and state that the note and mortgage and any other documents declared upon in the foregoing Petition are now in my actual possession; that I have read the above and foregoing Petition, know the contents thereof, have personal knowledge of the facts therein stated, and that the statements and allegations therein are true as I verily believe . Theodore R. Boecker PK0000439 Subscribed and sworn to before me this �/2day of August, 2001, at Des Moines, Iowa. �X1t;Zet- 21)-64.4._ UNAA L EVERS MYCOLIN SSION EXPIRES NotaryPublic in and for the September 20,2003 °"" State of Iowa Exhibit "C" END OF CASE FILE