raac vs. city of dyersville trial testimony 2-19-15
DESCRIPTION
Testimony of Dyersville City Administrator Mick Michel and other city officialsTRANSCRIPT
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583
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
UPON THE PETITION OF ))
RESIDENTIAL AND AGRICULTURAL )ADVISORY COMMITTEE, LLC, an )Iowa Limited Liability Company, )MATT MESCHER, ALLAN R. DEMMER, )CATHERINE DEMMER, WAYNE )AMESKAMP, SHARON AMESKAMP, )VERNON BOGE, DONALD BOGE, )MARY ANN RUBLY, JOHN R. RUBLY, )STEVE HOEGER, DOLORES THIER, )LARRY THIER, GARY BURKLE, )CINDY BURKLE, WAYNE VORWALD, )LINDA VORWALD, JEFF PAPE, )GERALD WOLF, JOANNE WOLF, )LORRAINE M. BURKLE and )BERNARD R. BURKLE, )
) CASE NO. CVCV057723Petitioners, ) CVCV101023
)vs. ) TRANSCRIPT OF TRIAL
)DYERSVILLE CITY COUNCIL, MAYOR )JAMES A. HEAVENS, MIKE ENGLISH, )MARK BREITBACH, ROBERT PLATZ, )MOLLY EVERS, and DAN )WILLENBORG, ) VOLUME IV
)Respondents. )
-------------------------------February 19, 2015
Dubuque County CourthouseDubuque, Iowa
BEFORE: Hon. Thomas A. Bitter, Judge
REPORTER: Kelly Neyen, CSR, RPRDubuque County Courthouse720 Central Avenue, Third FloorDubuque, IA [email protected]
TRANSCRIPT APPEALED: August 20, 2015TRANSCRIPT ORDERED: August 24, 2015TRANSCRIPT DELIVERED: September 28, 2015
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584
APPEARANCES:
SUSAN HESSHAMMER, SIMON & JENSEN, P.C.775 SinsinawaEast Dubuque, Illinois
Appeared on behalf of Petitioners.
DOUGLAS M. HENRYJENNY WEISSNICK THOMPSONFuerste, Carew, Juergens & Sudmeier200 Security Building151 West Eighth StreetDubuque, IA 52001
Appeared on behalf of Respondents.
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INDEX
WITNESS PAGEJAMES HEAVENS
Direct Examination by Ms. Hess........... 587Cross-Examination by Mr. Henry........... 634Redirect Examination by Ms. Hess......... 641
ROBERT PLATZDirect Examination by Ms. Hess........... 643Cross-Examination by Mr. Henry........... 653Redirect Examination by Ms. Hess......... 656
DAN WILLENBORGDirect Examination by Ms. Hess........... 657Cross-Examination by Mr. Henry........... 666Redirect Examination by Ms. Hess......... 670
DEPOSITION OF DANIEL OLBERDING................ 642MARC CASEY
Direct Examination by Ms. Hess........... 697Cross-Examination by Mr. Henry........... 714Redirect Examination by Ms. Hess......... 715
MICHAEL (MICK) MICHELDirect Examination by Ms. Hess........... 717Cross-Examination by Mr. Henry........... 775Redirect Examination by Ms. Hess......... 780
Last Page of Volume IV.................... 780
Certificate of Shorthand Reporter.........1121
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586
(The trial resumed at 9:02 a.m. on February 19,
2015.)
THE COURT: Good morning, everybody. Please
be seated. Okay. Are we ready with another
witness?
MS. HESS: Judge, I think we're going to
conclude the Planning and Zoning audio from July 9,
2012.
THE COURT: Okay.
(The audio from the July 9, 2012, Planning and
Zoning Commission meeting was played at this time.)
THE COURT: Okay. Just for the record, we
finished listening to the entirety of the audio from
the July 9, 2012, Planning and Zoning Commission
meeting.
Are we ready with another witness?
MS. HESS: Yes, Judge. Can I do some setup
prior to starting?
THE COURT: Yes.
MS. HESS: We call James Heavens to the stand.
JAMES HEAVENS,
having been called as a witness on behalf of the
Petitioners, having been first duly sworn by the
Court, was examined and testified as follows:
THE WITNESS: I do.
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587
THE COURT: Go ahead and have a seat. And
just state your name, please.
THE WITNESS: James Alan Heavens.
MS. HESS: Thank you.
DIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Heavens, what is your address?
A. 866 5th Street Southwest, Dyersville.
Q. Who is your employer?
A. US Feeds.
Q. What are you employed as?
A. I'm a cattle nutritionist.
Q. Now, it's my understanding that you are the
former mayor of the City of Dyersville; is that
correct?
A. That is correct.
Q. And I believe you told me you had two
five-year terms; is that correct?
A. Two five-year terms -- or two -- five
two-year terms.
Q. Five two-year terms.
A. Yes.
Q. So what years did you serve as mayor of City
of Dyersville?
A. I was elected in 2003, took office
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January 1, 2004, and left on December 31, 2013.
Q. Now, I think we had previous discussions
that the first time you met the developers that were
going to come and develop the Field of Dreams property
was in about 2009; is that correct?
A. Sounds right.
Q. Now, in November of 2011, the developer was
asking the City to conduct a water and sewer
feasibility study. Do you recall that?
A. I don't know if they asked us to do that or
we volunteered to do that. I think that was part of
our contribution to the project to initiate that
study.
Q. That study cost approximately $9,600?
A. I believe that's correct.
Q. Now, were you present -- I know you've been
here during some of these proceedings. Were you
present when we watched the video of the November 21,
2011, City Council meeting?
A. No.
Q. Now, Mr. Heavens, as far as you know prior
to the rezoning, that was the only study that the City
paid for, is that your recollection?
A. That is my recollection.
Q. Do you recall other members of the public
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coming to City Council meetings and requesting that
the council do studies on other issues other than
water and sewer feasibility?
A. I believe that they did, yes.
Q. And none were done, were they?
A. I guess my recollection of that would be
that there were -- there was a study done by IIW on
the water runoff. We did have a conservation
individual there.
Q. Mr. Heavens, I'm going to stop you for a
second. I guess I should have asked a better
question.
A. Okay.
Q. Prior to the rezoning, the City didn't pay
for any studies to be done that were requested by the
public, did they?
A. The City did not pay for any, to my
recollection, no.
Q. They didn't do a stormwater runoff --
A. No.
Q. -- study prior to the rezoning, did they?
A. No.
Q. Mr. Heavens, in November of 2011 when there
were preliminary discussions about a feasibility
study, you knew that the Field of Dreams property was
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not inside the city limits, didn't you?
A. Yes.
Q. You also knew that it would have to be
rezoned, didn't you?
A. Yes.
Q. So in December of 2011, you went on a bus
trip to Des Moines to lobby for the developer's sales
tax rebate. Do you recall that?
A. Yes.
Q. You actually made two trips to Des Moines,
didn't you?
A. Yes.
Q. And the first trip that you took was
actually with City Council members?
A. I believe there was two City Council members
with me, yes.
Q. And those City Council members, they would
have known in December of 2011 at the time they went
on the bus trip that this property was going to have
to get annexed into the City?
A. Probably, yes.
Q. And that it was going to have to get
rezoned?
A. Yes.
Q. Now, you took those two City Council members
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with you at that time because you were going to need
their yes votes for this project?
A. Not particularly.
MS. HESS: Your Honor, may I approach?
THE COURT: Yes.
Q. Mr. Heavens, I'm going to hand you an e-mail
that you sent to Jacque Rahe dated December 15th,
2011. Mr. Heavens, if you could follow along while I
read aloud. Do you recognize this e-mail you sent to
Jacque Rahe?
A. Yes.
Q. And the re line is "Meeting with Governor
Branstad on Monday, December 19th"?
A. Yes.
Q. And that's 2011; correct?
A. I would assume so, yes.
Q. And would you agree with me that your e-mail
to her said, "I agree, we don't want to put Denise" --
and when you say "Denise," you mean Denise Stillman,
the developer?
A. Yes.
Q. In an awkward -- "in any awkward position
with the Governor. When we discussed going to Des
Moines with Bob and Dan" -- and when you said "Bob and
Dan," you meant Bob Platz and Dan Willenborg?
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A. Yes.
Q. City Council members; correct?
A. Yes.
Q. " -- I did mention that Denise had arranged
the meeting with only Mick and I from the City, and it
would be up to her (and I perhaps TB) if any other
City people would be invited to attend. We don't
want to 'pack the room' here. They understood and are
cool with that. I'll discuss this with them before
Monday and see if they still want to make the trip
with David Vaudt at 1:00. They would be on site to
offer support if necessary and I want to keep them in
the loop as best we can as there will come a time when
we will need their yes votes on the project. I think
it would be worth taking them to supper with us."
Did I read that correctly?
A. Yes, you did.
Q. So you needed those two councilmen's yes
votes on this project, didn't you?
A. In a general sense, yes.
Q. Now, you actually took a second trip -- you
took a second trip to Des Moines; is that correct?
A. Yes.
Q. And on this trip, you actually took a
Planning and Zoning commissioner with you; is that
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correct?
A. I don't know if I took -- I wouldn't say I
took him with me. He attended the trip also.
Q. That was Roger Gibbs?
A. Yes.
Q. And the developer was on this bus trip?
A. Yes.
Q. In fact, we have a picture up here on the
screen. Is that the developer standing there at the
front of the bus?
A. It is.
Q. And are you sitting next to Roger Gibbs
there?
A. I think so. It's not a very good picture
of me, but -- at the lower right, you mean?
Q. Yes.
A. I would say that's probably me.
Q. Mr. Heavens, Mr. Gibbs would have been aware
that this property wasn't within the city limits at
that time, wouldn't he?
A. Yes.
Q. And he would have also known that the
property would have needed to be rezoned, wouldn't he?
A. I would assume he would know that.
Q. The developer actually paid for these trips
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to Des Moines, didn't she?
A. I assume so.
Q. Mr. Heavens, I believe you admitted to me
during your deposition that the City would have to do
some upgrades to your sewer plant to handle the
increased flow from wastewater for this Field of
Dreams project. Do you recall that?
A. In my deposition I said that?
Q. Yes.
A. I -- I would grant you that. I may have.
Q. Now, following these bus trips to Des
Moines, now that we're into early 2012, during the
early months of 2012, you were working to get the
sales tax rebate passed in the legislature for the
developer, weren't you?
A. I was working with Representative Lukan and
Senator Hancock to accomplish that, yes.
Q. And you were actively involved in contacting
the people you knew in Des Moines to make that happen,
weren't you?
A. Somewhat active.
Q. You were pretty excited when that passed and
proud of the work that you had done to help that,
weren't you?
A. Yes.
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Q. Now, Mr. Heavens, do you recall that the
developer had established a timeline with City staff
in order to get the property annexed and rezoned?
A. As I recall, she had requested a timeline,
more of a guideline, and we did establish one, yes.
Q. Okay. If you'll turn to Exhibit 48 in your
binder.
A. Which --
Q. The black one.
A. Okay.
Q. Thank you.
A. I'm there.
Q. Okay. On page 2 of Exhibit 48, about
halfway down, you were copied in on an e-mail dated
May 17, 2012. Do you recall that?
A. Only as reminded by this.
Q. And that was an e-mail from Mick Michel, the
City Administrator, to the developer hammering out
this timeline, wasn't it?
A. It appears so.
Q. And in this e-mail, Mick says he's
reemphasizing that if the developer needs to have the
zoning changed to a commercial designation by
August 31, 2012, below is the schedule that we will
need to follow. Did I read that correctly?
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A. Yes.
Q. And in this e-mail, the timeline proposes
way in advance of the meeting to actually waive the
second and third readings of the ordinance, doesn't
it? If you turn the page.
A. I think the timeline would assume that that
would happen.
Q. Well, it actually indicates in the timeline
that they may waive the second and third readings,
doesn't it?
A. It does, along with also if they don't.
Q. Now, if you turn to the last page of the
e-mail, do you recognize that as the final timeline
that was established?
A. It would appear to be.
Q. And this -- the heading is "Timeline for
Development Agreement, Annexation, Re-zoning Process."
Did I read that correctly?
A. You did.
Q. And it was already predetermined that at an
August 6, 2012, City Council meeting, there would be a
public hearing on the zoning request?
A. Could you repeat the question, please?
Q. Letter F.
A. Under F?
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Q. Yeah. It was predetermined that on
August 6, 2012, there would be a council meeting with
a public hearing on the rezoning request?
A. Well, I don't know if it would be
predetermined. That's how it falls in the timeline.
Q. Well, somebody created this timeline and
determined the dates that certain things would happen,
would you agree with that?
A. I agree.
Q. And at the same time "Act on Zoning
Ordinance - 1st Reading (may waive 2nd and 3rd
readings)." Did I read that correctly?
A. Correct, you did.
Q. And if you turn the page before that, that
timeline was actually established before the rezoning,
wasn't it?
A. Which page am I on here?
Q. Well, there's an e-mail attaching the
timeline dated July, 2012.
A. Well, got the May one. This is July --
7-12 -- okay. This one -- maybe I can hold it up for
you. This one here is what you're looking at?
Q. Sure. So that was before the rezoning?
A. Yes.
Q. Mr. Heavens, I'd like to talk to you a
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little bit now about the Memorandum of Understanding.
Can you turn in your binder to Exhibit No. 7?
A. Must be a different folder here. I've got
35 --
Q. There's another binder up there.
A. Okay.
Q. There you go.
A. No. 7?
Q. Yes.
A. Okay. I'm there.
Q. Okay. Now, this Memorandum of
Understanding was passed in March of 2012, do you
recall that?
A. I recall it being passed, yes.
Q. That was prior to the rezoning?
A. Yes.
Q. That Memorandum of Understanding was entered
into between the developer and yourself, as mayor for
the City of Dyersville?
A. Yes. Between the developer and the City of
Dyersville, yes.
Q. And in that Memorandum of Understanding, the
City agrees -- agreed to use their best efforts to
annex and rezone the property of the Field of Dreams,
didn't they?
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A. I believe they did, yes.
Q. In fact, that's what the text of it says,
that you agreed to use best efforts?
A. Yes, under No. 1 it does say that.
Q. You didn't put any language in there that
the City would review the annexation map and promptly
give an opinion as to whether or not it was
consistent, did you?
A. No, we did not.
Q. And you didn't put any language in there
that said you would remain impartial and assure that
the rezoning proposal was fairly heard, did you?
A. There's no language in there to that effect.
Q. Essentially, this agreement meant that the
City would use their best efforts to annex the land
that the developer wanted from the City, didn't it?
A. To me, I guess, it means that we would run
it through the normal processes, so to speak, keep it
on the front burner, not ignore it.
Q. Okay. Well, let's talk about ignoring
things. I'm going to have you turn to Exhibit 54,
Mr. Heavens. The developer didn't think you were
keeping this on the front burner, did she?
A. I think at one point she did raise an issue
about that, a concern about it. 54. Okay.
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Q. I'm sorry, I've got you at the wrong place.
Exhibit 56, I apologize.
A. Exhibit 56. Okay. Okay. I'm there.
Q. This is a copy of an e-mail chain between
yourself and the developers. Do you recall that?
A. I do.
Q. Now, if turn to the second page of that
e-mail. The first e-mail that was sent, the subject
line is "please explain," isn't it? Bottom of the
page, e-mail from Denise Stillman.
A. "Poor Jacque" -- "we believe". Please
explain?
Q. I'm on the second page, bottom half of the
e-mail.
A. "Mayor Heavens and Mick" does it start out?
Q. Yes. The re line is "Please explain."
A. Oh, Please explain, subject line. Okay.
Q. Did I read that correctly?
A. You did.
Q. Is it fair to say in this e-mail the
developer was raising concerns whether or not you were
following her timeline, wasn't she?
A. That we were behind her timeline?
Q. Well, let's look at the e-mail a little
closely. On the very bottom of the e-mail, does it
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start, "Because of the city's delay, we have lost very
precious time - yes every week counts -- and likely
will not hit key milestones in the city's political
process to obtain the necessary approvals to keep our
project on track. We are normally very easy to deal
with but I personally have very little patience for
people not keeping their word or blaming Mike and I
aimlessly. Please don't make promises that can't be
kept." Did I read that correctly?
A. Yes, you did.
Q. "We do not do business that way. Had I
known on April 11 that we wouldn't hear from the city
again for another four weeks (which, again we did in a
nice voice mail from Mayor Heavens this afternoon), we
would have shifted strategy in what we tell potential
investors. We cannot, in good faith, believe or say
that the city is doing all it can to help get this
project done. We certainly don't feel that way."
Did I read that correctly?
A. You did.
Q. And now I'm going to direct you to the
second -- to the bottom paragraph. "I do not pretend
to know where Jacque's job ends and Mick's begins.
All I know is that someone dropped the ball these last
four weeks." Did I read that correctly?
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A. You did.
Q. And then in the next paragraph, Mick --
"Mike and I have gone extremely far out of our way to
be in the city as much as we can and communicate early
and often with Jacque, who is sharing information with
Mick due to matters of public record." Did I read
that correctly?
A. You did.
Q. Based on that, was the developer funneling
her communication through your City Administrator to
avoid any impropriety?
MR. HENRY: I object. Calls for speculation.
THE COURT: Well, I'm going to let him answer
to the extent that he knows.
A. I really don't know that. I think that the
way that I would answer that, Ms. Hess, is that most
of the communication that was -- was between the City
entity and the developers was through Jacque Rahe as a
representative of the Dyersville Economic Development
Corporation.
Q. (BY MS. HESS) I'm going to direct you back
to the first page of that e-mail, Mr. Heavens.
A. Okay.
Q. Now, at the end of the e-mail chain, and
this is still "please explain" but now it says
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"confidential" in the re line. Do you see that on the
top of the page?
A. Is that right at the very bottom, "please
explain"?
Q. Very top of the page, Exhibit 56.
A. Okay. Very top of the page. Okay, I'm with
you.
Q. "Please explain confidential" is the re
line. Did I read that correctly?
A. "Please explain confidential," yes.
Q. Did I read that correctly?
A. You did.
Q. Now, this e-mail from Mike Stillman to you
dated May 12, 2012, says, "Thank you Mayor, As I sit
here at work this morning reading all these emails the
overriding question that remains is: Are the votes
there or not?" Was that what he was asking you in May
of 2012?
A. Apparently was.
Q. "I would have assumed by now that everyone
would have a handle on this. Denise and I need to
know this so we can forthright with our investors
because frankly we thought we had the overwhelming
support of the city." Did I read that correctly?
A. You did.
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Q. Mr. Heavens, the City Council are the ones
that are going to be voting on this project, aren't
they?
A. Ultimately, yes.
Q. Mr. Heavens, following that e-mail chain and
in June of 2012 -- or strike that -- in May of 2012,
Councilperson Molly Evers requested a Work Session,
didn't she?
A. Yes, she did.
Q. If you could turn to Exhibit 54.
A. I'm there.
Q. Mr. Heavens, does this appear to be Molly
Evers' May 22, 2012, e-mail to you requesting a Work
Session on the Field of Dreams project?
A. It is.
Q. Would you agree with me that it is part of
the policies that have been adopted by the City of
Dyersville to hold work sessions on major issues?
A. Certainly an option.
Q. It's actually a policy that you've adopted,
isn't it?
A. Not particularly, no. I think it was part
of our goal-setting session, in one of the goal-
setting sessions that we had. I think it was
actually after the Field of Dreams project, but I
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stand to be corrected on that.
Q. Okay. Well, let's turn to the goal
setting. Mayor Heavens, if you could turn to
Exhibit 35 in those binders, please.
A. I'm there.
Q. Let's start back as early as January 9,
2007. That's Exhibit 35; correct?
A. Yes.
Q. And you were actually part of this strategic
planning and goal setting, weren't you?
A. Yes.
Q. And these are adopted by the City as policy,
aren't they?
A. Yes. They're adopted as a -- by resolution.
Q. Sure.
A. Yes.
Q. Now, if you turn to page 6 of that exhibit,
you actually entered into a Team Building Agreement.
"The Mayor and City Council reviewed a variety of
ideas relating to team building and building a better
working relationship"?
A. Yes.
Q. And down there under item number one on the
list, "Table items if City Council needs more
information (unless time sensitive)." Did I read that
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correctly?
A. Yes, you did.
Q. And then on number five, "More work sessions
on major issues (as an option)." Did I read that
correctly?
A. Yes, you did.
Q. If turn to the next exhibit, which is the
Goal Setting Report for January 6, 2009, do you have
that in front of you?
A. No. Which exhibit is that?
Q. 36. The next one.
A. Oh, okay. Page?
Q. Well, on the front page, you were the mayor
at the time; correct?
A. Yes.
Q. This is dated January 6, 2009; correct?
A. Yes, it is.
Q. And, again, it was adopted by the City?
A. Yes.
Q. By resolution?
A. By resolution.
Q. And on page 8 under -- let me know when you
get there.
A. I'm there.
Q. Under Organizational Effectiveness, "The
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Mayor and City Council reviewed a variety of ideas
relating to improving organizational effectiveness to
accomplish the selected goals and priorities. After
review and discussion, the Mayor and City Council
selected the following steps to improve organizational
effectiveness." Did I read that correctly?
A. You did.
Q. And in the third bulleted point, "continue
holding work sessions on major issues." Did I read
that correctly?
A. It's the fourth bulleted point, actually,
isn't it?
Q. It is. Thanks for pointing that out. Did
I read that correctly?
A. Yes, you did.
Q. And, again, the next exhibit, 37, dated
January 10, 2011. Again, you're the mayor, correct,
at the time?
A. Yes.
Q. Page 8.
A. I'm there.
Q. Again, under Organizational Effectiveness,
fourth bulleted point down, "Continue holding work
sessions on major issues." So each time there's a
goal setting adopted, you continue to identify having
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work sessions on major issues; correct?
A. We did, yes.
Q. And that was prior to the rezoning in the
Field of Dreams matter, wasn't it?
A. I believe it would be, yes.
Q. Now, the developer actually requested that
she hold a work session with you, didn't she?
A. Not that I recall.
Q. On December 11th -- December 5, 2011, you
don't recall having a work session between the
developer and the City Council?
A. Could you point me to that? Or can I
refresh my memory with that? I don't --
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
MS. HESS: I don't have another copy. Do you
want to look at this?
MR. HENRY: That's fine.
Q. (BY MS. HESS) Mr. Heavens, if you want to
follow along, I'll read aloud. "Special meeting of
the Dyersville City Council, Monday, December 5, 2011.
Time: Immediately following city council meeting,
7:01 p.m. Place: Council chambers. Roll call:
Present, Mayor James Heavens, council members Michael
English, Molly Evers, Dan Willenborg, Bob Platz and
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Robert Kramer. The purpose of this Work Session was
a future development of Field of Dreams property
presented by Mike and Denise Stillman for the All-Star
Ballpark Heaven. Councilman Platz moved to adjourn
7:58 p.m., seconded by Councilman English. Motion
carried." Did I read that correctly?
A. You did.
Q. So the developer requested a work session
and you held one with her, didn't you?
A. Not that I recall. I don't know if she
requested that or we requested it.
Q. The minutes at least reflect you had --
A. We had one, yes, we did.
Q. And you were present?
A. Yes.
Q. Mr. Heavens, let's go back to the e-mail
from Molly Evers.
A. Which exhibit was that again?
Q. 54.
A. 54?
Q. Are you there?
A. I am there.
Q. Okay. Molly Evers sent this request to you
on May 22, 2012; is that correct?
A. Yes, apparently she did.
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Q. And you don't recall it?
A. I do, sure.
Q. And the Work Session -- the re line is "Work
Session Request - All-Star Ballpark Heaven."
A. Yes.
Q. And she actually underlined an entire
paragraph: "Could we hold a Work Session that would
function as an informational meeting about the
All-Star Ballpark Heaven matter? I think such a
session should be held before the issue of Annexation,
or the Development Agreement, is formally presented to
the Council. Perhaps we could use the new Senior
Center for this?" Did I read that correctly?
A. You did.
Q. And then Molly Evers, Councilwoman Molly
Evers went on to say that she had -- was hearing some
serious concerns from the taxpayers about this matter.
And didn't she go on to outline some additional
information about her concerns?
A. Yes, she did.
Q. You actually responded to her on City
letterhead and denied her request for a Work Session,
didn't you?
A. I did.
Q. You indicated in the second paragraph to the
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bottom that you think "the potential for a session
like this to become less than polite to a potentially
large Dyersville business enterprise is a big factor
to consider when we are contemplating this path."
A. I did.
Q. You were concerned about it being less than
polite to the developer to hold a Work Session
requested by a councilperson?
A. I was afraid it would turn into a circus.
Q. Mr. Heavens, even though your own goals and
policies that you identified and adopted indicated
that you should have Work Sessions on major issues,
didn't they?
A. It did.
Q. Mr. Heavens, after the annexation went
through, the next step in the process was the
resolution to rezone the property. Would you agree
with that?
A. I would agree with that.
Q. That resolution passed by the City Council
in July of 2012, do you recall that?
A. I believe that's the correct date.
Q. I'm going to have -- I have the resolution
up here, but you can refer to your binder, that would
be Exhibit 20 if you want to take a closer look in
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your binder.
A. Twenty, okay. Okay. I'm there.
Q. Okay. Now, this resolution was brought by
the City, wasn't it?
A. It would appear so.
Q. It wasn't brought by the property owner?
A. I don't think so.
Q. And there was a legal description on the
resolution that was used by the City; is that correct?
Page 2, Exhibit A.
A. Yes.
Q. And that was the same legal description that
was ultimately used on the ordinance, which was 770
that passed this?
A. I believe there was an error in this.
Q. But that was the same legal description that
was used; right?
A. Yes.
Q. And the one that passed had an error in it?
A. It had an error in it, yes.
Q. All right. Let's look at the map that's
attached to that resolution.
A. Okay.
Q. I think you told me at your deposition that
you didn't have any input in drafting that map, did
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you?
A. Not really, no.
Q. Do you know who drafted that map?
A. Well, I guess it doesn't say on here. I
would assume it would be a surveyor.
Q. Would it surprise you to know that that map
was drafted by City staff --
A. No.
Q. -- for City of Dyersville?
A. No, it wouldn't surprise me.
Q. Isn't that likely who would have drafted
this map?
A. Perhaps, yes.
Q. There's no stamp from a surveyor on this
map, is there?
A. No.
Q. You don't know if any councilperson had any
input into how this map was drawn, do you?
A. No, I don't.
Q. Once that resolution was passed, the
rezoning was scheduled for a public hearing, wasn't
it?
A. Repeat your question, Ms. Hess.
Q. Sure. Actually, I think I'll ask a better
question than that. Once this resolution was passed,
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this matter went to the Dyersville Planning and Zoning
Commission for consideration, didn't it?
A. I believe that's right.
Q. So the way that the timeline worked was that
the resolution passed and then the matter was put
before the Planning and Zoning Commission, is that the
way you understand it?
A. As I recall, that is. Without going back
and consulting the timeline, I think that's the way
that would work, yes.
Q. Now, you, yourself, when you saw this
resolution, when you signed this resolution, you
didn't consult with the Comprehensive Plan to make
sure that this was in accordance with your plan, did
you?
A. Not particularly.
Q. And you didn't consult with the Annexation
Plan to see if this was consistent with your
Annexation Plan, did you?
A. Well, in my own mind, I had consulted the
Comprehensive Plan and the Comprehensive Plan did not
forbid this.
Q. You agreed with me during your deposition
that there's nothing in the Comprehensive Plan that
supports a commercial development in this area, didn't
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you?
A. Or prohibit it.
Q. But there's nothing in the Comprehensive
Plan that this is in accordance with having a
commercial property located in this area, is there?
A. The Comprehensive Plan in 2003 does not
speak to this, no.
Q. In fact, put the map up here of the 2003
Annexation Plan. Now, this was adopted by the City,
wasn't it?
A. I believe so. Yes, before I was mayor.
Q. And it doesn't show the Field of Dreams
being annexed in at least out 20 years, does it?
A. It doesn't speak to that, no.
Q. There was never any discussion at any City
Council meeting that this rezoning was in accordance
with the Comprehensive Plan, was there?
A. I don't think it was ever discussed, no.
Q. You would agree with me that in doing any
rezoning, the City of Dyersville would be required to
follow zoning ordinances, would you agree with that?
A. Yes.
Q. They also have to follow state law?
A. Yes.
Q. And ultimately, it's the City Council's
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responsibility to make a decision to enact a rezoning,
to pass a rezoning?
A. Ultimately, yes.
Q. And the City Council is required to keep an
open mind when they're considering a rezoning, aren't
they?
A. Not particularly.
Q. Mr. Heavens, do you recall giving a
deposition in this case?
A. I do.
Q. And that deposition was on November 21,
2014?
A. I assume that's the right date, yes.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Heavens, I asked you
that same question during your deposition. If you'll
follow along while I read aloud. "Now, members of
the City Council are required to keep an open mind
when they're considering a motion to rezone, would you
agree with that?" And you said, "Certainly"?
A. Certainly. As opposed to "not
necessarily."
Q. So you would agree that they're required to
keep an open mind when they're considering a rezoning?
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A. Well, I think they all approach it with a
different mindset certainly.
Q. They're required to listen to public comment
at the public hearing?
A. Sure, they are.
Q. They're required to weigh all the facts and
information presented at the public hearing?
A. I would assume they would weigh it, sure.
Q. They're actually required to, aren't they?
A. Yes.
Q. They're also required to act in accordance
with a Comprehensive Plan when they're making rezoning
decisions, would you agree with that?
A. I think the Comprehensive Plan is a
guideline for them. As it states in the Comprehensive
Plan, it's a guideline.
Q. And state law actually requires and your
local ordinances require rezonings to be in accordance
with your Comprehensive Plan, don't they?
A. I don't know that.
Q. Do you remember during your deposition we
actually went through the City ordinances and the
state law and pointed out that you're required to act
in accordance with a Comprehensive Plan? Do you
recall that?
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A. No.
Q. Mr. Heavens, would you agree with me that
when the City Council rezones property, they they need
to look at the interest of the public when they're
doing that?
A. I would say they probably do, certainly,
yes.
Q. And not in the interest of the developer?
A. I think they have to weigh the two.
Q. You actually told me during your deposition
that they have to balance those two interests.
A. Same thing, balance them.
Q. And you told me that the general overriding
factor is to increase economic development, didn't
you?
A. I may have.
Q. Do you want to see your transcript?
A. Well, I would grant you that, that that's
probably the overriding factor, the overriding
guidance maybe, but again -- but again, to balance
that between the interests of the local people and a
developer.
Q. But you told me the overriding factor is the
economic development.
A. I'll grant you that. I may have.
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Q. Economic development means money for the
City; right?
A. Yes.
Q. Mr. Heavens, are you aware that Iowa
statutes on zoning provide for a supermajority vote if
properties within 200 feet of the boundaries of the
rezoning oppose that?
MR. HENRY: I object. It calls for opinion and
conclusion about a matter of law. It's counsel's
paraphrase or argument of what the statute provides.
It's unfair in form.
THE COURT: Well, I'm going to let him answer.
He was the mayor for ten years. I'll let him answer,
if he knows.
A. I was aware of that, yes.
Q. (BY MS. HESS) I'm sorry, I missed that
answer.
A. I was aware of that.
Q. Were you also aware that the local
ordinances provide for that right of protest within
200 feet, and that would require a unanimous vote by
the council?
A. I'm aware of something along those lines,
yes.
Q. And this rezoning has a 200-foot buffer
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strip placed around the proposed rezoning, doesn't it?
A. Yes.
Q. It's not on all sides, is it?
A. I'd have to consult the map again, but I --
I don't know.
Q. Well, we're looking at it up on the screen
here.
A. Okay.
Q. Would you agree with me that on the west
side of the proposed rezoning, there's no 200-foot
buffer strip?
A. I can't quite read that, but A -- I would
say, Ms. Hess, that it doesn't look like there is
there.
Q. So the property owners on the west side of
that proposed rezoned area would have the ability to
file a protest with the City, wouldn't they?
A. I couldn't tell you that.
Q. Well, it would appear that way by looking at
the map, wouldn't it?
A. It would appear that way.
Q. And, likewise, those property owners that
are -- that own property in the areas around the
200-foot buffer strip would not have the ability to
protest?
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A. No, they would not.
Q. Let's talk a little bit about the public
hearing in this case.
A. Okay.
Q. Once the Planning and Zoning meeting was
held, there was a resolution passed to schedule a
public hearing on the rezoning, do you recall that?
A. I recall that.
Q. If you could turn to Exhibit 21 in the
binder, Mr. Heavens.
A. Okay. I'm there.
Q. Do you recognize this as Resolution 47-12,
to schedule a public hearing on the rezoning for the
Field of Dreams?
A. I would recognize that as so, yes.
Q. Now, this was the only public hearing that
was held on the rezoning, wasn't it?
A. At the council level, I believe that's
right.
Q. Sure. The notice of the public hearing set
forth a legal description, would you agree with that?
A. It does.
Q. And this legal description also contained an
error, didn't it?
A. It's my understanding it did.
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Q. It misidentified property to be rezoned,
didn't it?
A. It's my understanding it did.
Q. Approximately a 40-acre parcel?
A. That's my understanding.
Q. Now, no map was published in the newspaper,
only a legal description, is that your understanding?
A. I doubt if there was a map published in the
newspaper.
Q. And at that public hearing, people would be
able to come forth and raise any concerns that they
had about this rezoning, wouldn't they?
A. Yes.
Q. And, likewise, you would anticipate that
someone would come and speak in favor of the rezoning,
wouldn't you?
A. Perhaps.
Q. Now, on August 6, 2012, you were present for
that public hearing?
A. I assume I was, yes.
Q. Mr. Heavens, do you need to watch the video
to refresh your recollection?
A. I will give you that, Ms. Hess, that I was
there.
Q. Okay. You actually ran the meeting, didn't
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you?
A. I would say if I was there, I ran it, yes.
Q. You don't recall anyone speaking in favor of
the rezoning at that public hearing, do you?
A. I don't recall who spoke at what -- for
what.
Q. Mr. Heavens, in fairness to you, let's get
the minutes out of the meeting, and would you agree
with me that the minutes would accurately reflect what
happened at the meeting?
A. Pretty much so, yes. They're approved. I'm
glad to look those up here.
Q. Will you turn to Exhibit 16? Are you there?
A. I am -- the council meeting and -- which
page are we on of the minutes?
Q. Page 2.
A. Page 2 of 4? Where it starts out with,
Council Member English moved to open Public Hearing?
Q. Yep.
A. Okay. I'm there.
Q. Okay. And actually, I guess, just to verify
that you were actually present, on page 1 there was
roll taken, roll call. Present: Mayor James
Heavens, Council Members: Dan Willenborg, Mark
Breitbach, Mike English, Bob Platz and Molly Evers.
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Would you agree with me?
A. Yes, that's correct. Yes.
Q. So there was a motion made to open the
public hearing to approve the rezoning of certain
property from A-1 Agricultural to C-2 Commercial?
A. That's the consideration, yes.
Q. Well, it doesn't say they're there to
consider it. It says they're there to approve the
rezoning, doesn't it?
A. That's what it says, yes. Probably
"consider" would be a better word than "approve,"
wouldn't it?
Q. I would agree with that.
A. Yep.
Q. Now, the first item there is actually
myself, I appeared on behalf of my clients --
A. You did.
Q. -- do you recall that?
A. I do.
Q. And I had indicated that I was requesting
the City Council to remain impartial, didn't I?
A. You indicated that, yes.
Q. And I felt that the zoning commission did
not stay impartial because they attended a Work
Session put on by the developer, and I raised some
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other concerns. Do you recall that?
A. I -- I do, in a general sense, yes.
Q. Nowhere else in the minutes does it show
where anyone spoke in favor of the rezoning, does it?
Go ahead and take your time and review it.
A. No, there was -- I don't think there was
anybody that spoke for it at this meeting, this
particular meeting.
Q. Not even the City Council members spoke in
favor of the rezoning, did they?
A. I don't -- I don't think they expressed an
opinion before they voted, no.
Q. Okay.
A. Perhaps one of them did right before the
vote, but not in a general sense. I mean, when you
ask for comments from the council, there was none of
them that really said much there, as I recall.
Q. The developer didn't even speak in favor of
this rezoning, did she?
A. No.
Q. No member of the City Council discussed any
evidence that they had in favor of the rezoning, did
they?
A. Not that I recall.
Q. No one discussed any studies, did they?
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A. Not that I recall.
Q. No one discussed the highest and best use of
this land, did they?
A. Not that I recall.
Q. No one discussed the density, a traffic
study, anything like that?
A. Not that I recall.
Q. No one discussed whether or not this
rezoning was in the best interest of the City of
Dyersville, did they?
A. I -- I think one may have discussed that in
the statement before the vote.
Q. Does that reflect -- is that reflected
anywhere in the minutes, Mr. Heavens?
A. I don't think it is. It's on the tape of
the meeting, but not in the minutes.
Q. And what was the statement that you're
talking about?
A. I think that was from Councilwoman Evers
right before a vote.
Q. So she expressed how she weighed some of the
evidence in this?
A. Yes, she did.
Q. And no other council person did, did they?
A. No, not to my recollection, they did not.
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Well, I'll take that back. I think there was one
other council member, Councilman English expressed his
view right before the vote too that it was kind of a
no-brainer for the City.
Q. I believe what he said was, and you can
correct me if I'm wrong, but it was -- he said, "It's
a grand slam I vote yes"?
A. Slam dunk, yes.
Q. Grand slam, is that what he said?
A. Something to that effect, yes, certainly.
Q. That wasn't weighing or considering any
studies, was it?
A. I don't know how he arrived at that.
Q. Would you agree with me that any
consideration on the rezoning needs to be conducted at
the public hearing?
A. Ask that again.
MR. HENRY: Object. Calls for an opinion of
law.
THE COURT: Overruled. Go ahead.
MS. HESS: I'll have it read back.
(The reporter read the record as requested.)
A. No. I would not agree with that.
Q. (BY MS. HESS) Mr. Heavens, where would
such discussions take place if they don't take place
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at the public hearing?
A. You mean amongst the council people or --
Q. Yes.
A. Or with the council people and their
constituents or --
Q. Amongst the council people.
MR. HENRY: You know, and I object --
Q. The people that are considering the
rezoning.
MR. HENRY: I object to counsel's change of the
wording of her question. The previous question was --
THE COURT: Consideration.
MR. HENRY: -- consideration and now she's
talking about discussion. I think it's misleading.
It's unfair in form.
THE COURT: It's noted. The original question
was any consideration should be held at the meeting.
MS. HESS: Sure. I'll ask --
THE COURT: Do you want to ask it again?
MS. HESS: Yeah.
A. Well --
Q. (BY MS. HESS) Go ahead.
A. Go ahead.
Q. No, go ahead with your answer.
A. Well, I think that the way that I would
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answer you, Ms. Hess, is that there is certainly a lot
of consideration that went on with this matter in
numerous venues, you know, without violating any open
meetings law between council people and the mayor and
city staff, the developer, the RAAC folks. There's
just a lot of discussion that went on with that.
Now, would that be confined strictly to a public
hearing on the matter? I would say not necessarily
so.
Q. Sure. In fact, some of these City Council
members actually had their mind made up in favor of
the rezoning prior to the public hearing, didn't they?
A. They could have. I don't know that.
Q. Would you agree with me, Mr. Heavens, that
any discussions with relation to the rezoning have to
be held at the public hearing?
A. No.
MR. HENRY: I object.
A. No. I would not agree with that.
MR. HENRY: Calls for an opinion of law.
THE COURT: Overruled.
Q. (BY MS. HESS) You believe that City
Council members can have discussions with regard to a
rezoning outside of a public hearing?
A. Sure, they can. I don't know how else they
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would do it.
Q. Mr. Heavens, would you agree with me that a
rezoning process provides for a notice to be heard?
A. Yes. A notice of the public hearing of it?
Q. A notice.
A. Yes.
Q. An opportunity to be heard?
A. Yes.
Q. And would you also agree with me that it's a
quasi-judicial process, kind of like a judge-like
decision?
MR. HENRY: I object. Calls for an opinion of
law.
THE COURT: That one probably does. I'm not
going to have him answer what the standard is.
Q. (BY MS. HESS) Mr. Heavens, when the motion
was made to close the public hearing, a vote was
taken, wasn't it?
A. I would assume so.
Q. But prior to that vote, I requested that the
City Council not vote until they had an opportunity to
review the letter that I had filed with the City
Clerk?
A. Yes, that's true.
Q. And in that letter, I advised the council
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that I had attached to that a signed petition, signed
by neighboring landowners in opposition to this
rezoning. Do you recall that?
A. You stated that, as I recall, yes.
Q. And the council didn't have an opportunity
to consider that evidence at the public hearing, did
they?
A. I think what happened there, as I recall,
Ms. Hess, that I certainly let you say what was in
your letter. Now, as far as whether the council
actually received it, I think you did hand something
out to the council, perhaps that was a copy of your
letter, but on the advice of the City Attorney, it was
not something that we received and filed at the -- at
the council meeting.
Q. Mr. Heavens, the City Attorney actually
spoke and said that he wasn't going to hand my letter
out to the council members, do you recall that?
A. I recall that, yes.
Q. So the council didn't actually have my
letter or the signed petition, did they?
A. I don't -- you know, Ms. Hess, I really
don't know whether they physically got it or not. I
guess my attempt there was to let you read what was in
your letter and express that to the council.
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Q. And again, no person spoke in favor of the
rezoning, did they?
A. No.
Q. And the vote passed four people -- four
council people in favor of it, one council person
against it?
A. I believe that's right, yes.
Q. Now, had my signed petition been accepted by
the council, do you know if that would have required a
unanimous vote by the council?
A. I don't know that.
Q. Certainly a possibility, would you agree
with that, based on your --
A. It's not outside the realm of possibility,
no.
Q. Mr. Heavens, you knew prior to the public
hearing that Councilperson Evers was not in favor of
this rezoning, didn't you?
A. I think she sent signals that she was not in
favor of it, yes.
Q. Came as no surprise to you that she voted
no?
A. Not a huge surprise, no. I remember she
did wish the developer well with her project, but she
didn't vote for it.
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Q. Okay. And it came as no surprise to you
that the other members voted in favor of it, did it?
A. I didn't know how they were really going to
vote. I guess it -- again, it is not out of the realm
of surprise that all four of them -- or the other four
voted for it.
Q. Well, you knew that at least two of the
council members went to Des Moines and lobbied for the
sales tax rebate on behalf of the developer; correct?
A. Several months before, yes, I know that two
of them did go and lobby for a sales tax exemption for
the project.
Q. Mr. Heavens, following the vote on the
rezoning, you did not win the election to the City
Council, did you?
A. No, I did not.
Q. And you told the media that that was a
referendum on the Field of Dreams project, didn't you?
A. That was my first blush on it, yes.
Q. And you were not too happy that the
referendum voted you out of office, were you?
A. Oh, I wasn't particularly saddened. You
know, I really didn't want to run again. You know,
I'm a believer in term limits, and I had been there
ten years, and I guess I was asked by several of the
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business community to run one more time.
Q. So you did run again?
A. I did run again, yes.
Q. And you lost the election?
A. I lost the election, yes.
MS. HESS: I have no further questions.
THE COURT: Let's take a short break.
(A brief recess was taken at this time.)
THE COURT: Please be seated, everyone. Okay.
Cross-examination.
CROSS-EXAMINATION
BY MR. HENRY:
Q. Mr. Heavens, I think it was probably
inadvertent, but I need to clear up something. In
her question to you about the Memorandum of
Understanding, Ms. Hess said that, as a predicate for
her question, that that was adopted in March of 2012,
and you said you didn't know. Would you look at
Exhibit 7 and tell me the date on that, the Memorandum
of Understanding?
A. The date on this is June 18, 2012.
Q. Okay. Now, there was -- there were a
series of questions about e-mails from Denise or Mike
Stillman about the City's sincerity in this effort
that you were asked about. Those were in May of
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2012; is that correct?
A. I would defer that that's the right date.
Q. Whatever the exhibit says?
A. Whatever the exact date was, yes.
Q. Did the -- did the developers continue to
express concerns about the -- the sincerity with which
the City was pursuing this matter?
A. Not that I recall.
Q. Ultimately, however, though a Memorandum of
Understanding was used?
A. Yes.
Q. Okay. As opposed to cutting right to a
development agreement?
A. Yes. A Memorandum of Understanding was used
first, yes.
Q. Okay. You were asked several questions
about work sessions and tabling and that sort of
thing. Am I right that in the -- as we looked at the
December 5th minutes, the Work Session was described
in the minutes as a special meeting?
A. Can you point me to that?
Q. It's the minutes dated December 5, 2011, in
the white binders in front of you, Respondent's
Exhibit E -- B?
(Whereupon, the reporter interrupted the
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proceedings.)
MR. HENRY: B as in boy.
A. And if you would ask your question again.
Q. That Work Session was shown on the minutes
as a special meeting?
A. Yes, it is.
MR. HENRY: Your Honor, I'd ask the Court to
take judicial notice of Chapter 17 of the Dyersville
ordinances relating to the City Council, and
particularly direct the attention of the Court to
Section 17.4 relating to meetings of the City Council.
THE COURT: Ms. Hess, any objection to that?
MS. HESS: No objection to the Court taking
judicial notice. I guess I'll wait and see what
questions he's going to ask.
THE COURT: Okay. I will take judicial notice
of that.
Q. (BY MR. HENRY) And, Mr. Heavens, with
respect to special meetings, can I direct your
attention to Section 17.04(2)? Am I reading this
right: "Special meetings shall be held upon call of
the Mayor or upon the written request of a majority of
the members of the Council submitted to the Clerk;"
did I read that right?
A. You did.
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Q. Did a majority of the members of the City
Council request a special meeting or Work Session?
A. As I recall, there was only one, one member.
MR. HENRY: Your Honor, I also ask the Court to
take judicial notice of Chapter 15 of the Dyersville
Code relating to the office of the mayor.
THE COURT: Any objection?
MS. HESS: No objection.
THE COURT: I will take judicial notice of
that.
Q. (BY MR. HENRY) And directing your
attention -- Mr. Heavens, directing your attention to
15.02(3), special meetings. 15.02, the powers and
duties of the mayor are as follows: Subsection 3,
Special Meetings: "Call special meetings of the
Council when the Mayor deems such meetings necessary
to the interests of the City." Did I read that
correctly?
A. You did. You did.
Q. Did you deem a special meeting, in your
discretion, necessary in the interest of the City?
A. Not particularly necessary, no.
Q. Directing your attention to Section
15.02(6), do you remember the introduction? "The
powers and duties of the Mayor are as follows:
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Subsection 6, Negotiations: "Represent the City in
all negotiations properly entered into in accordance
with law or ordinance. The Mayor shall not represent
the City where this duty is specifically delegated to
another officer by law, ordinance or Council
direction." Did I read that right?
A. You did.
Q. In the scope of your duties as mayor, did
you meet with and confer with Mr. and Mrs. Stillman
regarding this proposal?
A. The proposal for the project?
Q. Right.
A. Sure.
Q. Did you negotiate with them or supervise
negotiations?
A. No.
Q. Do you know whether in the course of
negotiations there were terms that they -- terms
proposed or required on the part -- by the City that
they objected to or resisted?
A. Not really. I think the big term that the
City asked in this whole project is the sewer and
water project, run the sewer and water out to the
Field of Dreams, and I think we informed the developer
that we were pretty inflexible to the point that the
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City was not going to pay for that up front.
Q. Okay. And how was that ultimately
resolved?
A. The Stillmans, the developer, agreed to fund
that at their expense as part of their capital
infusion into the project. The City could supervise
how -- how that was engineered, the Stillmans could
pick the actual construction company to do it with our
approval and as soon as it was turned on, it became
property of the City.
Q. Did you bring this proposal to the council
in your role as mayor?
A. I would say in the general course of
business, yes.
Q. What was your assessment of the project
proposal?
A. Of the proposal on the sewer?
Q. The overall project.
A. The overall project? Well, I think my
opinion of it kind of evolved, I guess, over time.
My first blush with it was that, hey, we hit the
jackpot, you know. Who in the small town of
Dyersville could have a project that would put in
$35 million worth of taxable property, offer 1,200
jobs -- granted, some of them were part time and some
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maybe at minimum wage, but still 1,200 jobs. I think
that -- that opinion evolved into one that it was a
high-risk, high-reward project for the City from
the --
Q. Let me stop you there. What were the risks
that you're talking about there?
A. The risk was that if the City had to foot
the bill for running the water and sewer out there and
the project failed after a couple years, the taxpayers
would be on the hook for that entire project, you
know, the $2 million or whatever that was to run the
water and sewer out there, and I think that's what
prompted our objection and as probably a nonnegotiable
that we would not do that. So when the Stillmans
elected to incorporate that as part of the project on
the terms I just kind of elaborated, then it became
kind of a low-risk, high-reward project for the City,
and that's kind of my opinion of it.
Q. I note that under Section 15.5 regarding the
duty of the -- duties and powers of the mayor, the
mayor is not a member of the council and shall not
vote as a member of the council; is that right?
A. That's correct.
Q. Did you purport to vote in this matter?
A. No.
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MR. HENRY: I don't have any other questions.
REDIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Heavens, you just testified about this
project being low risk and high reward.
A. Yes.
Q. And we're talking dollars and cents in that
answer, aren't we?
A. Certainly from a dollars-and-cents
standpoint, yes.
Q. We're not talking about health and safety of
the citizens of Dyersville with that consideration,
are we?
A. Well, I guess that's debatable, but my -- my
approach to the thing, first of all, it was a dollars-
and-cents approach. Now, after that was taken off
the table essentially, then it did become a discussion
about the impact of the project on the community and
both plus and minus.
Q. Mr. Heavens, you didn't give that answer
when asked by Attorney Henry about this project. You
indicated low risk, high reward dollars and cents;
isn't that true?
A. Well, I think that's what I answered you
too.
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MS. HESS: I have no further questions.
MR. HENRY: I have nothing further, Your Honor.
THE COURT: Thank you, sir.
THE WITNESS: Okay. Thank you.
MR. HENRY: Mr. Heavens is here under subpoena.
Is he free to leave?
MS. HESS: Yes.
THE COURT: Okay.
MS. HESS: I don't believe I did subpoena that
witness.
MR. HENRY: Pardon?
MS. HESS: He's a party to the case. I didn't
subpoena him.
MR. HENRY: Yeah, but you did subpoena him.
You asked me to have him sign an acceptance. He did
sign an acceptance of service of your subpoena.
THE COURT: That's fine. Either way.
MR. HENRY: He's free to go in any event.
THE COURT: He can come and go as he chooses.
MS. HESS: But he is a party to the case. I
imagine if we have to recall him, we have the ability
to do that.
THE COURT: Yeah, he's a party. I suppose you
can recall him if you need to.
MS. HESS: We call Robert Platz to the stand.
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Mr. Platz.
ROBERT PLATZ,
having been called as a witness on behalf of
Petitioners, having been first duly sworn by the
Court, was examined and testified as follows:
THE WITNESS: I do.
THE COURT: Go ahead and have a seat. State
your name for the record, please.
THE WITNESS: Robert Charles Platz.
DIRECT EXAMINATION
BY MS. HESS:
Q. Can you please state your address?
A. 1120 3rd Street Southwest, Dyersville, Iowa.
Q. Mr. Platz, you are a former City Council
member for the City of Dyersville; is that correct?
A. That's correct.
Q. And it's my understanding that you had
served approximately twelve years as a City Council
member for Dyersville?
A. Yes.
Q. And I believe when you were -- when you were
put on the council, you took an oath?
A. Yes.
Q. And in that oath, you swore to uphold the
laws of the State of Iowa and the ordinances of the
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City of Dyersville?
A. Yes.
Q. Now, you first heard about the potential
development of the Field of Dreams area in late 2011;
is that correct?
A. That's correct.
Q. The developer presented her plan for the
development?
A. Yes.
Q. And there was a request that the City do a
feasibility study of putting water and sewer out to
that location in November of 2011, do you recall that?
A. I don't really recall it, but I'm sure that
happened, yes.
Q. Mr. Platz, are you a party to the case?
You're a Respondent in this case, aren't you?
A. Yes.
Q. Were you present during the proceedings when
we showed the video of the November 2011 City Council
meeting?
A. No.
Q. Was it your understanding that the City paid
approximately $9,600 for that feasibility study?
A. Yes.
Q. Now, at that time, you knew, didn't you,
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that the Field of Dreams property was not annexed into
the City?
A. Yes.
Q. And you knew that the Field of Dreams
property would need to be rezoned in order to allow
commercial development at that location?
A. Yes.
Q. You knew that and understood that in
November of 2011?
A. Yes.
Q. Now, in December of 2011 you were invited to
go to Des Moines to lobby for the sales tax rebate for
the developer, do you recall that?
A. Yes.
Q. And you went there to Des Moines along with
another City Council member; correct?
A. Yes.
Q. And the mayor?
A. Yes.
Q. And the City Administrator, Mr. Michel?
A. Yes.
Q. And I believe Mike and Denise Stillman and
their children went along too, do you recall that?
A. They were there. I don't know if -- if
they came with us, but they were there, yes.
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Q. And you went out for dinner when you were in
Des Moines?
A. Yes.
Q. And the developer paid for your expenses on
that trip, didn't she?
A. I don't know. It was paid for by somebody,
yes.
Q. Okay. You didn't pay for it?
A. No.
Q. Dan Willenborg, also a City Council member,
went with you on that trip?
A. Yes.
Q. And you were there in support of the
developer, who was at that time trying to get a sales
tax rebate legislation passed; is that correct?
A. Correct.
Q. Now, that sales tax rebate was not for the
City, was it?
A. No, it was for Stillmans.
Q. And you actually went to Des Moines a second
time and sat in on a subcommittee meeting at the
capitol where the topic of the Field of Dreams sales
tax legislation was discussed, do you recall that?
A. Yes.
Q. That was also prior to the rezoning of the
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Field of Dreams property, wasn't it?
A. Yes.
Q. And I believe you told me at your deposition
that you were in favor of the development and the
rezoning prior to the public hearing, weren't you?
A. I was in favor if everything would fall in
place, yes.
Q. And when you say "fall in place," you're
talking about whether or not she got her sales tax
rebate?
A. That's right, yes, that and -- well,
everything has to go with it to get it.
Q. And we learned that that sales tax rebate
actually passed prior to the rezoning in early 2012,
didn't we?
A. Yes. It was passed before the rezoning,
yes.
Q. Members of the public came before the City
Council and requested that the City Council conduct
studies prior to the rezoning, didn't they?
A. Yes.
Q. And you're not aware of any study that the
City conducted other than the water and sewer
feasibility study, are you?
A. Yeah, as far as the City study, it would
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have been just the water and sewer.
Q. I'm talking about prior to the rezoning.
A. Yes.
Q. At the public hearing, now, that was
August 6, 2012, do you recall that?
A. No, I don't.
Q. Do you need the minutes to refresh your
recollection?
A. Listening to Mr. Heavens' testimony, I -- I
know what was -- what was going on, but I -- I just
don't remember being there that particular evening.
Q. Okay. But you're not disputing that you
were there?
A. No.
Q. You heard that you were listed in the
minutes as being present?
A. Yes.
Q. Do you recall that?
A. Yes, uh-huh.
Q. Now, you didn't disclose at that public
hearing that you had been to Des Moines lobbying for
the sales tax rebate on behalf of the developer, did
you?
A. No.
Q. At no time during any City Council meeting
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did you disclose that to anyone, did you?
A. No.
Q. Now, there was a 200-foot buffer strip that
was put around the proposed rezoning, do you recall
that?
A. Yes.
Q. Mr. Platz, I'm going to put that up on the
screen because we're going to be referring to that.
You didn't have any input into how that rezoning map
was drawn, did you?
A. No, I didn't.
Q. And I believe you indicated -- when I asked
you during your deposition what you thought the
purpose of that 200-foot buffer zone was, you
indicated that it worked well at the ethanol plant to
get noise away from the general public?
A. That's affirmative.
Q. Was that your understanding as to what the
200-foot buffer zone was for?
A. Yes.
Q. Now, you don't have any evidence that a
200-foot buffer strip reduces noise, do you?
A. No. I'm not an engineer. I have no
evidence of that. That's what happened at the
ethanol plant and it did work.
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Q. And that's what -- that's what someone told
you?
A. Yes.
Q. No one testified at the public hearing that
200 feet would be a distance that would reduce noise,
did they?
A. No.
Q. Mr. Platz, that's Exhibit 20. I've got it
up there on the screen. If you need to look at it
closely in your binder, you can have that. It's
right up there if you can't see.
A. That's fine.
Q. Now, Mr. Platz, prior to the public hearing
on August 6, 2012, you were not aware that a 200-foot
buffer strip would take away the right of protest of a
neighboring landowner, were you?
MR. HENRY: I object. It assumes a fact not in
the evidence, and it assumes a fact contrary to law.
THE COURT: Overruled.
Do you understand the question?
THE WITNESS: Yes.
THE COURT: Go ahead and answer.
A. I think I probably -- yes, I probably knew
that just because that's what the situation was at the
ethanol plant.
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Q. (BY MS. HESS) Okay. So it was your
understanding that at the ethanol plant, a 200-foot
buffer strip was put in and that took away the right
of the neighboring landowner to protest?
A. Yes.
Q. That's where you learned about that?
A. Yes.
Q. And then, again, here the City is
implementing that 200-foot buffer strip, and it's
taking away the right of the neighboring landowner to
protest?
A. Yes.
Q. So you understood that?
A. Yes.
Q. Mr. Platz, you would agree with me that the
Comprehensive Plan for the City of Dyersville in place
in 2012 didn't call for commercial development in the
area of the Field of Dreams, did it?
A. No, it didn't.
Q. And you would agree with me that during the
public hearing, no person spoke in favor of the
rezoning, did they? I know you said you don't
recall --
A. I don't recall, but according to the minutes
that you read, apparently nobody did.
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Q. Do you need to review the minutes again
or --
A. No.
Q. -- would you agree with me?
A. I agree.
Q. Mr. Platz, you, yourself, never made any
independent finding that this rezoning was in
accordance with the Comprehensive Plan, did you?
A. No.
Q. You never consulted with the City Attorney
or the City Administrator to inquire as to whether or
not the Field of Dreams rezoning was in accordance
with the Comprehensive Plan?
A. No. We've annexed a lot of property, and it
was all volunteer annexation, and we never really went
into that Comprehensive Plan.
Q. Okay. So you would agree with me if you
look at the annexation map, that the Field of Dreams
property isn't anywhere that was anticipated to be
annexed into the City, is it?
A. Not when that map was drawn, no.
Q. Well, if you look at the key to the map even
out to 2023, the Field of Dreams property is still not
within the area anticipated to be annexed, would you
agree with that?
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A. I agree.
Q. Now, Mr. Platz, it's within the authority of
the City Council to amend the Comprehensive Plan,
isn't it?
A. Yes, it is.
Q. And that was never done, was it?
A. No.
Q. Mr. Platz, I believe you told me during your
deposition that you relied exclusively on the
unanimous vote of Planning and Zoning when you made
your decision. Do you recall that?
A. Yes.
Q. And is that what you made your decision on?
A. Yes.
Q. You didn't do your own independent review?
A. No, that's why the City Council has Planning
and Zoning.
Q. Okay. So you relied exclusively on that
vote?
A. Yes.
MS. HESS: I have no further questions.
THE COURT: Cross-examination.
CROSS-EXAMINATION
BY MR. HENRY:
Q. Mr. Platz, in your answer to Ms. Hess, your
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answers to Ms. Hess, you said, "I was in favor of it
if everything would fall in place." What -- what
needed to fall in place for you to be in favor of
this?
A. The money, number one, from the state
legislature, the water systems; sewer systems;
anything that goes with annexing property. That all
has to be taken into consideration before you can give
a positive vote or a negative.
Q. Anything else? Anything else?
A. No, not really. I don't think -- I mean,
it's just the whole complex of annexation, everything
that goes with it.
Q. And what goes with that?
A. You got to have the water and the sewer,
that's state code; you got to have dollars, and the
people, the Stillmans, had to have dollars or it
wouldn't go. It was their money. It's their land.
Q. Did it have to be rezoned too?
A. Yes.
Q. Under the Memorandum of Understanding, the
Memorandum of Understanding provided for annexation,
TIF financing, rezoning, all as preconditions to the
development agreement; right?
A. Yes.
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Q. As you -- what was your understanding about
whether the Memorandum of Understanding was binding or
nonbinding?
A. It would have been binding, yeah, unless
somebody reneged on it or -- yeah.
Q. When you listened to the -- when you
listened to the -- at the August 6th meeting, did you
listen to the people that spoke against the rezoning?
A. I'm trying --
Q. The August 6th meeting is the meeting where
the rezoning was approved, where the council acted to
rezone the property. Did you listen to people that
spoke?
A. Yes. Yes, if there was people there that --
that objected, we did listen to that, yes.
Q. Do you remember Ms. Hess speaking at that
time?
A. I remember the situation with a letter, yes.
I don't remember the particular letter, but I do
remember our City Attorney, yeah.
Q. Do you -- did you -- do you feel that you
gave the objectors a fair hearing?
A. Yes.
MR. HENRY: I don't have any other questions.
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REDIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Platz, there was never any water or
sewer out to the Field of Dreams site, never any city
water and sewer out to the Field of Dreams site, was
there?
A. No.
Q. And there still isn't today, is there?
A. No.
Q. Yet the annexation passed and so did the
rezoning?
A. Yes.
Q. Would you agree with me that if a signed
petition is presented to a council and it's rejected,
that that wouldn't be fair, would it?
A. That's -- that's -- yes, that's probably
true, but the -- timewise, the signed petition and
everything wasn't -- wasn't going to be presented to
us until within a half an hour before our meeting,
which does not give us time to analyze that either.
Q. Sure. Mr. Platz, if you learned that it
would have been proper for a signed petition to be
presented at the public hearing, then it wouldn't be
fair if it was rejected, would it?
A. Wouldn't be fair if it was rejected? Yeah.
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No.
MS. HESS: No further questions.
MR. HENRY: I don't have any other questions.
THE COURT: Thank you, sir.
MR. HENRY: Mr. Platz is here also under a
subpoena. May he be released?
MS. HESS: Yes.
THE COURT: Okay.
MS. HESS: Dan Willenborg.
DAN WILLENBORG,
having been called as a witness on behalf of
Petitioners, having been first duly sworn by the
Court, was examined and testified as follows:
THE WITNESS: I do.
THE COURT: Go ahead and have a seat. State
your name, please.
THE WITNESS: Daniel John Willenborg.
DIRECT EXAMINATION
BY MS. HESS:
Q. What is your address?
A. 1047 18th Street Southeast, Dyersville.
Q. Mr. Willenborg, you were on the Dyersville
City Council for eight years; is that correct?
A. That is correct.
Q. And you were on the City Council during the
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time that the rezoning took place for the Field of
Dreams property?
A. Yes.
Q. Are you currently on the City Council?
A. No.
Q. When you were on the City Council, you took
an oath, do you recall that?
A. Yes.
Q. And that oath was to act in accordance with
the laws of the State of Iowa and also the ordinances
of the City of Dyersville, do you recall that?
A. Yes.
Q. Now, the developer, Mr. and Mrs. Stillman,
they presented their plan for development at the Field
of Dreams property in late 2011. Do you recall that?
A. Yes.
Q. And you've --
A. At the council meeting or --
Q. Well, just in general.
A. Yes.
Q. Late 2011?
A. Yes.
Q. Would you agree with that?
A. Yes.
Q. Have you been present during the course of
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the proceedings here this trial?
A. Yes.
Q. You were present when we watched the City
Council video from the November 2011 meeting?
A. I was, yes.
Q. And during that meeting, the developer was
requesting that the City do a feasibility study for
sewer and water extension to the Field of Dreams
property. Do you recall that?
A. Yes.
Q. And the City authorized spending
approximately $9,600 on that study?
A. Yes.
Q. Knew at that time that the Field of Dreams
property was not within the city limits, didn't you?
A. Yes.
Q. You also knew that it would need to be
rezoned to commercial for that proposed activity,
didn't you?
A. Yes.
Q. You knew that in late November 2011, you
were aware of that?
A. Yes.
Q. You also knew at that time that the Field of
Dreams area was not within the City's Annexation Plan,
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didn't you?
A. Yes.
Q. You understood that it would have to be
annexed in and rezoned?
A. Yes.
Q. Mr. Willenborg, in December of 2011, you
traveled to Des Moines with Councilman Platz, who just
testified, and also the mayor?
A. Yes.
Q. And that was in support of the sales tax
rebate legislation that the developer was seeking,
wasn't it?
A. Yes. It was to be there for an extra
person.
Q. In support of the project?
A. Yes.
Q. And you went out to dinner together?
A. Yes.
Q. And the developer paid for that, didn't she,
that trip?
A. I can't tell you that. I don't know.
Somebody paid for it.
Q. You didn't pay for it, did you?
A. That's correct.
Q. You then in December of 2011, you went to an
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investor meeting at the Julien Hotel in Dubuque where
the developer was hosting a get-together, didn't you?
A. That is correct.
Q. And at that time you were in favor of this
development even though you weren't an investor; is
that true?
A. That is true.
Q. Mr. Willenborg, there was subsequently a
public hearing scheduled on the rezoning, wasn't
there?
A. Yes.
Q. And that was set for August 6, 2012?
A. Yes.
Q. Now, at that public meeting, you didn't
disclose to anyone that you went to Des Moines to
lobby on behalf of the developer, did you?
A. No.
Q. At no City Council meeting did you disclose
that information?
A. No.
Q. Prior to the public hearing, you were in
favor of this project being located out at the Field
of Dreams, weren't you?
A. Yes.
Q. You didn't disclose to anyone in the City
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Council that you attended an investor meeting, did
you?
A. No.
Q. Mr. Willenborg, have you had an opportunity
to review the rezoning map that's up on the screen?
A. Yes.
Q. And that's Exhibit 20, if you need to find
that in your binder for a closer look.
A. No, I can see it fine there.
Q. Now, you didn't have any input into how that
map was drawn, did you?
A. No.
Q. But you understood that the 200-foot buffer
zone did take away the right to protest by at least
some of the neighboring landowners, didn't you?
A. Yes.
Q. You didn't learn that -- or did you know
that prior to the public hearing on August 6, 2012?
A. Could you repeat the question?
Q. Sure. Did you know that a 200-foot buffer
strip would take away the right of protest? Did you
know that prior to the August 6, 2012, meeting?
A. Yes.
Q. And you were aware of that because that was
what was done at the ethanol plant; correct?
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A. Correct.
Q. Mr. Willenborg, would you agree with me that
on the west side of the development, there's no
200-foot buffer strip?
A. Yes.
Q. So that that landowner could have filed a
protest had they wanted to?
A. Yes.
Q. But the other neighboring landowners around
the 200-foot buffer strip were prevented from filing a
protest, weren't they?
A. Yes.
Q. And that right of protest is provided for
both by Iowa law and City of Dyersville ordinances,
isn't it?
MR. HENRY: I object. Calls for an opinion of
law.
THE COURT: Yeah, I'm not sure that he would
know.
You can answer if you know that, sir.
A. I don't know.
Q. (BY MS. HESS) Was it your understanding
that at least some law provided for a right of protest
of a neighboring landowner within 200 feet?
A. Yes.
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Q. Now, you told me during your deposition that
you didn't think you were required to follow the
Comprehensive Plan. Do you remember telling --
A. Yes, I remember that.
Q. You said that zoning decisions, rezoning
decisions don't have to be made in accordance with a
Comprehensive Plan. Do you remember --
A. Yes, I remember saying that.
Q. Yet you know of nothing in the Comprehensive
Plan that supports the commercial development at the
Field of Dreams area, do you?
A. No.
Q. Mr. Willenborg, I believe you told me that
your understanding of a Comprehensive Plan was to
encompass the City and outlying areas for planning
purposes, do you recall that?
A. Yes.
Q. Do you recall prior to the rezoning members
of the public coming before the council and requesting
that studies be done?
A. Can you repeat that, please?
Q. Sure. Do you recall members of the public
appearing at City Council meetings prior to the
rezoning and requesting that studies be done to look
into the impact of this development?
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A. Yes, I think -- I think they were there --
or they were requesting, yes.
Q. The only studies that were done by the
City -- the only study that was done by the City was
the water and sewer feasibility study, wasn't it?
A. Yes.
Q. Mr. Willenborg, with regard to the
annexation map that's up there on the board --
A. Okay.
Q. -- you would agree with me that the Field of
Dreams property is outside the boundaries of any
proposed Annexation Plan going out 20 years from the
date of that?
A. Yes.
Q. So that would be to 2023?
A. Yes.
Q. Mr. Willenborg, do you remember telling me
you thought it would be okay to take away the right of
protest by a neighboring landowner if it was good
economic development?
A. I don't remember saying that.
Q. Do you dispute that you told me that in your
deposition?
A. No. No.
MS. HESS: I have no further questions.
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THE COURT: Cross-examination?
CROSS-EXAMINATION
BY MR. HENRY:
Q. When you were called upon to vote -- the
meeting we're talking about, council meeting we're
talking about when you voted, council voted to rezone
this property was August 6th of 2012. Just to --
that's the meeting we're talking about. When you
were called upon to vote at that meeting, what were
the sources of information on which you relied?
A. On the Planning and Zoning.
Q. Anything else?
A. And just from hearsay from other people out
in the community.
Q. Okay. Anything else?
A. I had a phone call from a gentleman that
worked at a local car wash, and he said he was doing
kind of an informal survey saying that he was asking
all the people what they thought, and they all thought
that the Field of Dreams was a good thing, that it
would be a good thing.
Q. Anything else?
A. Not that I can --
Q. Did you get a call from Mr. Ameskamp too?
A. No, I did not.
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Q. Okay. You had a packet at the meeting?
A. Yes.
Q. Had you attended meetings about this topic
going back to November of 2011, council meeting?
A. I was at the council meetings, yes, and also
I was at the Planning and Zoning meeting that --
Q. On July 9th?
A. July 9th, yes.
Q. So you -- you considered public input?
A. Yes.
Q. Did you hear from people both for and
against the project?
A. Yes.
Q. Did you give them an open ear both ways?
A. Thought I did.
Q. Did you listen to the people that
appeared -- Ms. Hess who appeared on August 6th and
objected to the proposal?
A. Yes.
Q. Do you think you gave her a fair hearing?
A. Yes.
Q. Do you agree that Dyersville is a community
with many different facets?
A. Yes.
Q. Do you agree that one of those facets is
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tourism?
A. Yes.
Q. Do you agree that it's important to maintain
a balance between all of the elements of Dyersville
and not sacrifice one for another?
A. Yes.
Q. Do you agree that each of those facets
should have ample room to grow and flourish within the
community?
A. Yes.
Q. Do you agree that more job opportunities --
the need for more job opportunities is a weakness
within the community?
A. Yes.
Q. Do you agree that a threat to the community
would be loss of the Field of Dreams or other major
tourism attraction?
A. Yes.
Q. Do you agree that development of
recreational facilities is a goal for the City of
Dyersville?
A. Yes.
Q. Do you agree that economic development is a
goal for the City of Dyersville?
A. Yes.
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Q. If Ms. Hess had been able to persuade you on
August 6th of 2012, did you understand that you had
the right to vote against this project?
A. Yes.
Q. Did she persuade you?
A. She was not able to present her --
Q. I mean, did she persuade you?
A. Oh, no.
Q. Do you have any financial interest in the
Field of Dreams project?
A. No.
Q. Any member of your family have any financial
interest in the Field of Dreams project?
A. No.
Q. Either direct or indirect?
A. No.
Q. The red area in the map, is that the area
that you understood was going to be rezoned?
A. Yes.
Q. And you intended to do that by your vote?
A. Yes.
MR. HENRY: I don't have any further questions.
MS. HESS: Thank you, Judge.
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REDIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Willenborg, you didn't have the benefit
of a copy of my letter in front of you at the council
table the night of the August 6, 2012, meeting, did
you?
A. No.
Q. So you don't know what the entirety of the
contents of that letter were, do you?
A. No.
Q. And I represented to the council during the
public hearing that I had a signed petition by
neighboring landowners attached to my letter, didn't
I?
A. Yes.
Q. And you didn't --
A. That's what you said you had, yes.
Q. You didn't have the benefit of that before
you made your vote, did you?
A. No.
Q. I believe when questioned by Attorney Henry,
you indicated that -- on information you relied on to
make your vote, you considered information that you
received outside the public hearing, didn't you?
A. Yes.
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Q. No one at the public hearing spoke about
anything having to do with the health, safety and
welfare of the City of Dyersville with regard to this
rezoning, did they?
A. No.
Q. So that wasn't anything you considered at
the public hearing, was it?
A. Not then, no.
Q. Now, you talked about -- Attorney Henry
asked you some kind of general concepts about a goal
of -- some goals that were important for Dyersville.
Do you recall that?
A. Yes.
Q. Do you recall at a City Council meeting in
February of 2012 one of the local manufacturing places
in Dyersville expressing concerns with finding
employees to fill manufacturing jobs?
A. Yes, I think I do.
Q. So that was an employer in Dyersville that
was already struggling to find jobs to fill for
manufacturing?
A. Yes.
MS. HESS: I have no further questions.
MR. HENRY: Nothing, Your Honor.
THE COURT: Thank you, sir.
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THE WITNESS: Thank you.
MS. HESS: Judge, at this time I have some
testimony I'd like to read into evidence. Can we
take a short break?
THE COURT: Yeah, that's fine. Let's take
five or ten minutes.
(A brief recess was taken at this time.)
THE COURT: Let the record reflect at this time
we're going to read the deposition of Daniel
Olberding. That deposition was taken November 24,
2014. Again, Attorney Terry Kurt is going to read
the witness' responses, so, Ms. Hess, when you're
ready.
MS. HESS: Thank you, Judge.
EXAMINATION
BY MS. HESS:
Q. "Please state your full name and spell it
for the record.
A. "Daniel James Olberding. D-A-N-I-E-L
J-A-M-E-S O-L-B-E-R-D-I-N-G.
Q. "What is your address?
A. "2151 332nd Avenue, Dyersville, Iowa 52040.
Q. "Who is your employer?
A. "Bard Materials.
Q. "Any other employment?
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A. "Peosta Warehousing.
Q. "What do you do at Peosta Warehousing?
A. "Drive truck.
Q. "How long have you been employed at Peosta
Warehousing?
A. "I did, last year I did from Christmas until
probably the middle of April and then just started
today. So, I've got four months, three, four months
at Peosta Warehousing. And then the rest of the year
is at Bard.
Q. "Has your background and employment been in
truck driving --
A. "Yes.
Q. "-- for the majority of your career?
A. "Yes.
Q. "Do you belong to any boards or commissions?
A. "Planning/Zoning.
Q. "Is that the only one?
A. "Yes.
Q. "That's the City of Dyersville?
A. "Yes.
Q. "How long have you been on the City of
Dyersville Planning and Zoning Commission?
A. "Oh, God. I don't know. It's probably been
12, 13 years. I don't know exactly when I went on.
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I'd have to check the records.
Q. "12 or 13 years?
A. "I'm, I'm guessing.
Q. "What are your duties as a member of the
Planning and Zoning Commission?
A. "Chairperson.
Q. "And as chairperson or a member, what do you
do?
A. "Call the meeting to order, ask for the roll
call votes, kind of ask people to come up and speak if
they want and give their name and address and such.
Q. "And they would be speaking on an agenda
item?
A. "Correct.
Q. "So, there's an agenda that goes out to the
meeting. Is there other information that's
circulated generally?
A. "The -- say, if it's a re-platting, the
information on what's re-platted. A list of notified
individuals within -- was it 50 or 100 feet or
200 feet, whatever it is of property that's being
re-platted or rezoned. The minutes from the last
meeting. I would say that's probably -- sometimes
aerial maps or computer-generated maps of the area.
Q. "Who generally sends out that packet?
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A. "City of Dyersville.
Q. "I'm going to hand you what's been marked as
Exhibit 12. That's a copy of Chapter 23 from the Code
of Ordinances for the City of Dyersville with regard
to Planning and Zoning Commission. Are you familiar
with that?
A. "Yes.
Q. "And under Powers and Duties, No. 3
addresses zoning. And if you'll just read along with
me, does that state that: 'The commission shall have
and exercise all the powers and duties and privileges
in establishing the city zoning regulations and other
related matters and may from time to time recommend to
the council amendments, supplements, changes or
modifications all as provided by Chapter 414 of the
Code of Iowa.' Is that what that states?
A. "I would agree, yes.
Q. "So, in your powers and duties, does that
state that that's governed by Chapter 414 of the Code
of Iowa?
A. "Well, it says provided by the chapter.
I --
Q. "All as provided by Chapter 414 of the Code
of Iowa. You can look at it. I don't mean to --
you can look at the whole thing if you want. I just
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read No. 3 with regard to zoning.
A. "And also it says may from time to time
recommend. So, I would consider that to be somewhat
of a gray explanation maybe.
Q. "As a commission member are you required to
follow Iowa Code Section 414?
"MR. HENRY: I object to the question. Calls
for an opinion and conclusion, matter of law, lack of
foundation, competence."
THE COURT: I would let him give his
understanding of it, so I'll overrule it.
A. "Okay. Repeat the question, please.
Q. "Sure. Are you required to follow Iowa
Code Section 414 on zoning matters as a member of the
Planning and Zoning Commission?
A. "I would say yes.
Q. "Now I'm going to hand you a copy of Iowa
Code -- I'll represent to you Exhibit 17 is a
photocopy of the Iowa Code Section 414 on city zoning.
Okay?
A. "Okay.
Q. "And under 414.3, Regulations and
Comprehensive Plan, considerations and objectives,
notice, adoption and distribution, does it state that
the regulations shall be made in accordance with the
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Comprehensive Plan and designed to preserve the
availability of agricultural land; to consider the
protection of soil from wind and water erosion; to
encourage efficient urban development patterns; to
lessen congestion in the street; to secure safety from
fire, flood, panic and other dangers; to promote
health and the general welfare; to provide adequate
light and air; to prevent the overcrowding of land; to
avoid undue concentration of population; to promote
the conservation of energy resources and promote
reasonable access to solar energy and to facilitate
the adequate provision of transportation, water,
sewage, schools, parks and other public requirements?
A. "Yes, that's what it says.
Q. "Did I read that correctly?
A. "Yes.
Q. "Let's just take the first sentence or the
first part of that here. The regulations shall be
made in accordance with the Comprehensive Plan.
Based on that, do you believe that you're required, in
your duties as a Planning and Zoning Commission
member, to make your decisions in accordance with the
Comprehensive Plan?
A. "I believe that a Comprehensive Plan is, is
just a very general or none -- I don't know the word
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I'm looking for. It's not set in stone, in my
opinion, the Comprehensive Plan. It can be changed
at any time.
Q. "Sure. But do you believe that your
decisions as a Planning and Zoning member need to be
made in accordance with whatever Comprehensive Plan is
in place at the time?
A. "I believe that everyone takes that into
consideration. It's not always going to be that way.
Q. "When does the Planning and Zoning
Commission not have to act in accordance with a
Comprehensive Plan?
A. "When do they not have to act in accordance?
That's a, that's a tough question to answer in a way.
I would -- if it would be something that maybe is
really good for the city or the people of the City of
Dyersville that wasn't set out 20 years ago and now
all of a sudden looks really good.
Q. "So, you believe that in those instances
that you don't have to act in accordance with a
Comprehensive Plan?
A. "Well, I think everyone takes it into
consideration. I'm not saying they have to or they
don't have to act that way.
Q. "But that would be one instance where you
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believe it would be acceptable?
A. "Yes.
Q. "Were you in attendance at a Planning and
Zoning Work Session on Sunday, July 8, 2012?
A. "Yes.
Q. "And how were you notified of that Work
Session?
A. "I believe by mail.
Q. "You mailed out the notice of that?
A. "I did not. The city. I believe that's
what it was. I could be incorrect. It was either
that or a phone call. I'm not sure.
Q. "What was your understanding as to what
would go on at the Work Session?
A. "Information given out to whoever was there.
Q. "By whom?
A. "Mrs. Stillman.
Q. "Had you met Mrs. Stillman prior to the Work
Session --
A. "No, I did not.
Q. "-- that Sunday? Sorry. It might be easier
if I finish my question before you start your answer.
A. "Sorry.
Q. "That's okay. It's difficult for her to
take everything down. Had you met with Mrs. Stillman
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prior to the Work Session on Sunday, July 8, 2012?
A. "No.
Q. "Had you had a conversation with
Mrs. Stillman, Mr. Stillman or any of their
representatives prior to the Work Session on Sunday,
July 8 --
A. "No.
Q. "-- 2012? At the Work Session were minutes
taken?
A. "No, not that I'm aware of.
Q. "I'm going to hand you Exhibit 4 and ask you
to identify that document.
A. "It looks like our minutes taken by Tricia
Maiers.
Q. "That was for the Work Session for Sunday,
July 8, 2012?
A. "That's when it's dated, so I would say yes.
Q. "Do the minutes state that the meeting was
called to order by Denise Stillman at 6:30 p.m.?
A. "That's what it says, yes.
Q. "Did Mrs. Stillman have any authority to
call a Planning and Zoning Commission Work Session to
order?
A. "I would say no.
Q. "Yet the minutes reflect that that is what
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happened?
A. "That's correct.
Q. "Were those minutes subsequently amended or
revised?
A. "Looks like they crossed that off.
Q. "And you're looking at Exhibit 5 now?
A. "Okay.
Q. "Is that correct, it's marked down there
Exhibit 5?
A. "Yes, that's correct.
Q. "And does Exhibit 5 reflect revised minutes
where the entry stating meeting called to order by
Denise Stillman at 6:30 is stricken?
A. "Correct.
Q. "Following the Work Session, did you have
any discussions with Mrs. Stillman, Mr. Stillman or
any representatives of theirs?
A. "No.
Q. "The following day did you have a Planning
and Zoning meeting?
A. "If you show me a piece of paper. I'm not
sure when the meeting was that month.
Q. "Sure. Was there a Planning and Zoning
meeting on July 9, 2012? I will give you the minutes
as soon as I find them here. I'm going to hand you
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Exhibit 3. It's a binder. And under Tab Letter O,
do those appear to be the minutes of the July 9, 2012,
meeting?
A. "That's what the cover page says.
Q. "Okay. Go ahead and look at them.
A. "This is not part of the minutes here, the
first page. Right here it starts. This is --
that's it. Everything except them first two pages.
Q. "Prior to the July 9, 2012, Planning and
Zoning Commission meeting, did you review any
documentation to prepare for the meeting?
A. "Everything that was in the packet that the
city sent out.
Q. "And I think I've actually got that marked
as an exhibit. Exhibit 1, I'll represent, was
provided by your attorney and the attorney for
Dyersville City Council marked Exhibit 1. And the
first bullet point indicates that documentation for
the Planning and Zoning Commission packet for
July 9th, 2012 was in there. Do you want to go ahead
and review that.
A. "This was not in there.
Q. "The pages are actually numbered.
A. "Okay.
Q. "And maybe you can identify them by page
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number.
A. "Page 1 and 2 I know were not in there.
I'm almost positive, but --
"MR. HENRY: Just so you understand, Dan, pages
1 and 2 are what we filed, the attorneys filed saying
here are these things, we're producing these things,
and we list the P&Z packet as things submitted.
Q. "So, just in order to identify what you
reviewed prior to the meeting, if you can identify it
by page number, that would be helpful.
A. "Page 3, I know, was in there; page 4 was in
there, I remember that being in there.
Q. "Is that --
A. "Page 5, page 6 was in there, page 7, page
8, page 9, page 10, page 11. I don't, I don't think
that was in there, page 12, I do not believe was in
there. I know it wasn't. We did not -- I know we
did not approve minutes of the Work Session. Page 13
I do not believe was in there. And I do not believe
14, 15, 16 was not in there, because these are, these
are all the minutes from that meeting, so they were
not in there, 16 through 19 were not in there.
Q. "So, now, Exhibit 1 you've identified all
the documents that you reviewed prior to the Planning
and Zoning Commission meeting on July 9, 2012?
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A. "Correct.
Q. "Did you do anything else to prepare for the
July 9 meeting other than reviewing those documents?
A. "Did a lot of thinking.
Q. "Thinking about what?
A. "To approve or not to approve.
Q. "Did you talk to anyone or did you just
reflect on it personally?
A. "Well, I talked to a few of the neighbors, I
know.
Q. "When you say 'neighbors,' do you mean your
neighbors?
A. "Yes, my neighbors.
Q. "And did you get input from them?
A. "I did.
Q. "Do you remember anything specific about
that?
A. "I would -- specifically, no. But
generally everyone pretty much told me as long as the
city didn't have to pay for the sewer and water to run
out there, they were fine with it.
Q. "Did you talk to anyone else?
A. I talked to -- talking to Becky
Schwendinger.
Q. "Is she a neighbor?
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A. "No. She lives on the west end of town,
good friend. I talked -- I believe Jeff Wieneke
called me on the phone.
Q. "What did he tell you?
A. "That he thought it was good for the City of
Dyersville for business and tourism.
Q. "Anyone else?
A. "Dennis their.
Q. "Who's that?
A. "He's my employer.
Q. "And who initiated that conversation?
A. "He did.
Q. "He's your employer?
A. "Yes.
Q. "And this was prior to the meeting?
A. "Correct.
Q. "What did he tell you?
A. "He told me he thought the Field of Dreams
was good, good thing for the City of Dyersville.
Q. "Did he indicate that he thought you should
vote one way or another?
A. "No, he did not.
Q. "Where did that meeting take place?
A. "His office.
Q. "Did he specifically call you into his
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office to talk about the meeting?
A. "That, I do not know.
Q. "Did you talk about anything else at the
time?
A. "Probably. I do not recall what it would be
or what it was.
Q. "Did you talk to anyone else?
A. "My wife. I'm sure I talked to my parents
about it. Right now I can't think of anyone else.
Q. "Prior to going into that meeting, did you
think that was going to be a difficult decision to
make?
A. "Yes, very.
Q. "Why?
A. "Because I knew there was some people
against it, and I knew that they were strongly against
it. Not just, you know, well, let's go up and voice
our opinion and then leave. You know, I knew it was
going to be a lot, a lot of opposition.
Q. "Had you made up your mind prior to the
meeting how you were going to vote?
A. "No.
Q. "Any other information that you reviewed or
people that you talked to?
A. "I believe I saw a paper that Mr. Ameskamp
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put on the windows of the cars at Mass. Whether it
was the week before or two weeks before, I don't
remember when that was, but I think I saw that, but
I'm not sure.
Q. "So, that would have been documentation that
you reviewed concerning the proposed development?
A. "Yes.
Q. "Anything else?
A. "Articles I read in the paper. I know
there was quite a few letters to the editor and things
from -- is it Michigan or wherever there's a complex
like this or something? I remember seeing a few
articles in the paper about that, pro, for and
against, pros and cons, read all that.
Q. "Did you review anything else?
A. "I do not recall.
Q. "You were present at the meeting?
A. "The Planning and Zoning meeting?
Q. "Yes. I'm sorry. On July 9, 2012.
A. "Yes.
Q. "And did you listen to the overview that was
provided by Mick Michel?
A. "Yes.
Q. "Do you remember anything about that?
A. "Not specifically, no.
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Q. "As a Planning and Zoning Commission member,
are you required to make a report to the City Council?
A. "No. We can either give a positive, a
negative or no report at all.
Q. "In this case what was done? What was the
conclusion?
A. "Positive report to approve rezoning of such
property.
Q. "And what is the actual report that's sent
to the City Council?
A. "That, I don't know. I don't know what
they get in their packets. I couldn't tell you if
it's just a sentence that says the city or the
Planning and Zoning approved it. I don't know.
Q. "So, you, yourself, didn't make a written
report --
A. "No.
Q. "-- to the City Council?
A. "I -- no.
Q. "I believe you indicated that in advance of
your meeting you did review page 5, 6 and 7?
A. "Correct.
Q. "I'm just going to direct your attention to
those pages. When you reviewed this Resolution 38-12
that was the proposal from the city and attached legal
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description and map, did you have any questions as to
why the map was drawn in the manner it was?
A. "I do not recall.
Q. "Were there any concerns raised at the
Planning and Zoning Commission meeting on July 9,
2012, concerning how the boundary maps were drawn, how
the boundary of the proposed map was drawn?
A. "I do believe there was some questions about
the 200-foot buffer.
Q. "What was your understanding as to why that
was raised as a concern?
A. "From which party?
Q. "Well, from any party, from all parties, any
party that you heard from.
A. "I know Matt said something about -- or
Matt -- or maybe Matt's son said something about it
was like blocking you out of, of disproving the
proposal. And then the city said that there was a
buffer zone for noise and pollution and whatever
concerns could come from that.
Q. "If, in fact, the way the map was drawn took
away Mr. Mescher's right to protest the rezoning,
would that have concerned you?
A. "Yes.
Q. "Why?
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A. "Well, he's a neighbor. He gets the right
to, to oppose.
Q. "And it's my understanding that Mr. Mescher
actually handed out a copy of Iowa Code Section 414.5
to the Planning and Zoning Commission members. Did
you receive a copy of that?
A. "Yes.
Q. "Did you have an opportunity to review that
portion of Iowa Code Section 414 prior to the vote?
A. "Yes.
Q. "And what was your understanding as to the
actual text of the Iowa code that he was bringing to
your attention?
A. "Well, I remember the city attorney, the
city attorney at that time being present, and I
remember someone asked him for an opinion, and he said
that it was, was legal.
Q. "So, did you understand that if a written
protest is filed by property owners, that it triggers
a mechanism requiring a three-fourths vote of the
council to approve the rezoning?
"MR. HENRY: I object. That is a statement of
fact by counsel that is inaccurate."
THE COURT: Overruled.
Q. "You can go ahead and answer the question,
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if you know.
A. "Repeat it, please."
MS. HESS: So, did you understand that if a
written protest is filed by property owners, that it
triggers a mechanism requiring a three-fourths vote of
the council to approve the rezoning?
A. "Yes.
Q. "And you relied on the city attorney's
opinion to the, that was expressed to the commission
members that, that what they were doing by putting in
that buffer zone was legal?
A. "Yes.
Q. "Do you know, even though the city attorney
expressed an opinion that what was done was legal, if
the intent of the buffer zone still took away the
right to protest by the property owners, would that
have been concerning to you even if it was legal?
A. "Yes.
Q. "Have you had a chance to review your copy
of the July 9, 2012, minutes?
A. "Yes.
Q. "Anywhere in the minutes is the
Comprehensive Plan, is it reflected in there that the
Comprehensive Plan was discussed? Go ahead and take
your time to review it. I know it's kind of unfair
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to ask you before you've had a chance to review it,
but anywhere in there does it talk about the
Comprehensive Plan?
A. "I do not see anything.
Q. "Do the minutes of the Planning and Zoning
Commission go to the City Council for consideration?
A. "I believe so.
Q. "And do you know, in this particular case,
prior to the City Council voting on the rezoning, do
you know if they reviewed and approved those minutes?
A. "No, I do not know.
Q. "I'm going to hand you what's been marked
Exhibit 8 and represent to you that this is a copy of
the Planning and Zoning Commission meeting minutes of
February 11, 2013.
A. "Okay.
Q. "So, this would have been a meeting that
took place after the vote on whether or not to issue a
positive report to the council on the rezoning.
A. "Okay.
Q. "It appears, according to the minutes, that
you called the meeting to order.
A. "Correct.
Q. "Do you recall that meeting?
A. "If I read the minutes, I may.
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Q. "I'm just going to direct your attention to
a portion of the minutes where the Field of Dreams
rezoning is discussed, if you could review Item 5 on
the agenda.
A. "Fifth item, the headline reads, fifth item,
Approve Dubuque County Regional Field of Dreams Smart
Plan. Would you like me to read this out loud?
Q. "No. Just read it to yourself, and then I'm
going to direct you to a couple of portions of it.
A. "Okay.
Q. "Do you recall that discussion at the
Planning and Zoning meeting?
A. "No.
Q. "At least as reflected in the minutes the
committee was questioning Mr. Michel about the Field
of Dreams area, and at that time Mr. Michel advised
that the Field of Dreams was not in the 2003
annexation but was in the prior Comp Plan. Is that
what he told the commission?
A. "That's what it says, so I'm going to go off
of that.
Q. "And it was also noted that the plan had
some minor editing issues that should be looked at.
Is that also something he provided the commission
according to the minutes?
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A. "According to the minutes.
Q. "I'm going to hand you what's been marked
Exhibit 6. Are you familiar with that Annexation
Plan in 2003 that was referenced in the minutes?
A. "Yes.
Q. "According to this 2003 City of Dyersville
Annexation Plan, on the legend does it indicate areas
shaded in green are areas to be annexed in the city
within five years of this plan?
A. "Five years, yes, it does.
Q. "And areas shaded in blue are areas to be
annexed in five to ten years of that plan?
A. "Yes, it does.
Q. "And the areas identified in yellow to be
annexed into the city within 10 to 20 years of the
date of the plan?
A. "Yes, it does.
Q. "And I'll represent to you that a blue
circle in blue ink out here all the way on the
right-hand side of the page is the Field of Dreams
property. Is that consistent with what you know
about where the Field of Dreams property is located?
A. "May I ask what else is circled here?
Q. "That is not the Field of Dreams property,
but it's identified over here in blue. If you want to
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review, if you can see where the roads intersect, that
might help.
A. "I see Lansing Road and I see Dyersville
East Road. Okay. Yes.
Q. "So, the blue circle all the way on the
right --
A. "Yes.
Q. "-- is that the Field of Dreams property?
A. "Yes.
Q. "Are any of those shaded areas as proposed
to be annexed into the city, does it reach out as far
as the Field of Dreams property?
A. "No, it does not.
Q. "Even 10 to 20 years out from 2003, is that
anywhere near the Field of Dreams property?
A. "When you say 'anywhere near,' that's very
broad.
Q. "Well, none of the shaded areas reach out to
the Field of Dreams property, do they?
A. "No.
Q. "And, in fact, the areas to be annexed
within 10 to 20 years are on the opposite end of
Dyersville as to the Field of Dreams?
A. "Correct.
Q. "And that's the map that was referenced in
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the minutes of February 11, 2013; is that also your
understanding?
A. "If it says Annexation Plan, that's what it
says, right?
Q. "2003.
A. "Is there a date on here?
Q. "Yes. June 3, 2003, Annexation Plan. It's
pretty small.
A. "Okay. Yes.
Q. "So, at the time the commission was
questioning Mr. Michel about where the Field of Dreams
property was in relation to the Annexation Plan; is
that your understanding by reviewing the minutes?
A. "Yes.
Q. "When you made your vote to give a positive
report to the City Council on the rezoning, what did
you base that on?
A. "Future jobs and basic growth of the city.
Q. "When you say 'growth of the city,' what do
you mean by that?
A. "Maybe a hotel or two, more restaurants,
stores on Main Street hopefully.
Q. "Are those economic development-type issues?
A. "I would say yes.
Q. "Anything else?
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A. "That's probably it, in a nutshell.
"MS. HESS: I don't have any further questions.
"MR. HENRY: I don't have any questions."
THE COURT: Okay. Very good. Thank you.
Let's take our lunch break.
(A noon recess was taken at this time.)
THE COURT: Please be seated, everyone.
Okay. Ms. Hess.
MS. HESS: Thank you, Judge. We call Marc
Casey. Mr. Casey.
MARC CASEY,
having been called as a witness on behalf of
Petitioners, having been first duly sworn by the
Court, was examined and testified as follows:
THE WITNESS: I do.
THE COURT: Go ahead and have a seat. And
just start off with your name, please.
THE WITNESS: Marc William Casey.
DIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Casey, what is your business address?
A. 129 First Avenue East, Dyersville, Iowa.
Q. What is your profession?
A. An attorney.
Q. In what states are you licensed?
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A. Iowa.
Q. Are you currently the City Attorney for the
City of Dyersville?
A. No.
Q. Have you been in the past?
A. Yes.
Q. During what years?
A. From approximately 1976 until 2014 I would
have been the City Attorney, but for -- I believe
there was a two-year period somewhere in there when I
was not.
Q. Now, although you indicated you were the
City Attorney for a number of years -- and how many
years was that? I didn't add that up.
A. I would guess it's probably about 35 or
36 years.
Q. Do you remember telling me in your
deposition that you're not totally familiar with the
rezoning process?
A. I don't know if I would have said it in
those words, but I'm sure you're going to tell me if I
did.
Q. Okay. Mr. Casey, you gave a deposition in
this case on December 18, 2014. Do you recall that?
A. Yes.
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Q. And my question to you: Would you agree
with me that when rezoning a parcel of property, there
is a process that is required to be followed? And you
agreed with me on that.
A. Yes.
Q. And then I said: "With regard to the City
of Dyersville, what is that process?" And your answer
was: "I'm not totally familiar because I'm not not
involved in this most times." Does that ring true
with what you remember?
A. Within the proper context, that would be
true.
Q. Do you want to look at your answer?
A. No. I believe what my intention was when I
gave that answer would be that I am not involved in
the rezoning process from start to finish. I would
be called in most cases to put an ordinance together
rezoning once they had gone through the process of
going to P&Z, having the hearing, having the ordinance
adopted.
Q. Okay. And in this particular case, it's
your understanding we're here on the ordinance that
rezoned the Field of Dreams property; is that correct?
A. Yes.
Q. And I believe you told me that you weren't
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involved in drafting the rezoning map for Resolution
38-12, which was the resolution proposing this
ordinance; is that correct?
A. I was not involved from the standpoint that
I did not prepare that map. I may have had
consultations with Mr. Michel on that, but I did not
prepare the map itself.
Q. Okay. I believe you indicated at your
deposition that you may have had some input into the
200-foot buffer zone that was put on that map?
A. That's correct.
Q. And you indicated that that was to provide
protection for adjoining landowners, is that your
understanding?
A. That's correct.
Q. You also told me that that 200 feet is
consistent with state code. Do you remember telling
me that?
A. Yes, I do.
Q. And during your deposition, you couldn't
tell me what part of the state code found a 200-foot
buffer strip in, could you?
A. No.
Q. And you made the statement to the Dyersville
City Council at the public meeting that the 200-foot
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buffer strip was done pursuant to the law. Do you
recall that?
A. Yes.
Q. You also indicated that you used a 200-foot
buffer strip at the ethanol plant and that seemed to
work well?
A. That's correct.
Q. I believe you also agreed with me that
anyone outside of that 200 feet could not file a
protest as a neighboring landowner; is that correct?
A. In the context of what we're talking about
now, that would be correct.
Q. Mr. Casey, you were present at the public
hearing on the rezoning, which was on August 6, 2012.
Do you recall that?
A. I was present.
Q. And at that public hearing, or prior to that
on that day, I had filed in a written protest signed
by neighboring landowners in a letter outlining
several pages of concerns. Do you recall that?
A. Yes.
Q. It was at that meeting that you prevented my
letter and signed petition from getting in front of
the council. Do you recall that?
A. I would not phrase it in that manner. The
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702
implication is I did something inappropriate and
improper.
Q. Did you allow the City Council members to
have copies of my letter and signed protest before the
vote to rezone?
A. I did not allow that letter to be inserted
with the council packet or the information they had
because of the belief that it would have been a
possible violation of the open meetings or public
records law.
Q. In what way, Mr. Casey?
A. We had already sent out the council packets
that had gone to the press. What was there could be
presented, as it should be, through the course of the
public hearing, but to put that with the council's
materials right before the meeting I deemed
inappropriate at that point in time.
Q. And that was your opinion?
A. Yes, it was.
Q. And this was material submitted, including a
signed petition, on behalf of neighboring landowners
at a public hearing. Was that your understanding?
A. It was not presented at the public hearing.
It could have been presented at the public hearing,
but apparently you chose not to.
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703
Q. Mr. Casey, I'm going to show you a copy of
that letter that you would have seen on August 6,
2012. If you look at your binder there in front of
you, the black one, Exhibit 57.
A. I'm sorry, what was that number?
Q. 57.
A. Okay.
Q. Is that a copy of the letter? You've seen
that before, haven't you?
A. I have.
Q. And does it indicate on the top left-hand
corner that it was received by the City Clerk on
August 6, 2012?
A. There is a notation. There's a hole
punched through part of the initial, and it doesn't
say City Clerk, but --
MS. HESS: Your Honor, may I approach? I'm
going to turn this screen on over here.
THE COURT: Yes. I can get it for you.
Q. (BY MS. HESS) Mr. Casey, is that a better
copy of it up on the screen?
A. It is.
Q. Okay. Does that indicate in the top left-
hand corner "received 8-6-12"?
A. Yes, it does.
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Q. And do you recognize those to be Tricia
Maiers' initials and handwriting?
A. I cannot say for a fact that that is Tricia
Maiers but --
Q. Mr. Casey, who --
A. If she has testified it's her, then I
wouldn't dispute that.
Q. Who notified you that I filed this letter
with the City Clerk?
A. I don't recall.
Q. Isn't it true that you instructed Tricia
Maiers to call me and tell me just prior to the
hearing that you would not be allowing my letter to go
before the council?
A. I don't recall if I did that or not.
Q. Mr. Casey, I believe you indicated that in
your role as City Attorney, you're familiar with the
Dyersville City Ordinances on rezoning; is that
correct?
A. I would be familiar with them, that's
correct.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (MS. HESS) Mr. Casey, I'm going to show you
a copy of the Dyersville City Ordinances, and I'm on
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page 640. They're also in your binder as Exhibit 34,
I believe. Could you find page 640 on Exhibit 34?
Is that the provision in the Dyersville City
Ordinances that allows for a written protest to be
filed by neighboring landowners under No. 5?
A. Yes, that is.
Q. Okay. And that's what we're talking about
here today; right?
A. Yes.
Q. Okay. Now, I'm going to just have you read
along with me. "If the Commission recommends
against, or if a protest against such proposed
amendment, supplement, change, modification or repeal
is presented in writing to the Clerk, duly signed by
the owners of 20 percent or more either of the area of
the lots included in such proposed change, or of those
immediately adjacent in the rear thereof extending the
depth of one lot or not to exceed two hundred
(200) feet therefrom"... Did I read at least that
portion of that correct?
A. Yes, you did.
Q. And does that indicate that a written
protest is to be filed in writing with the clerk?
A. It indicates it can be, yes.
Q. Well, does it indicate some other method in
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706
which you would present a signed petition?
A. I guess we're arguing about what the
intent -- if you're saying it's mandatory, no, it
doesn't say that. I'm saying but you can certainly
file one or a party can certainly file one if they
meet the requirements.
Q. Mr. Casey, does it say somewhere in here
that written protest gets filed with some entity other
than the clerk? Go ahead and take your time if you
need to.
A. Not in this paragraph, no.
Q. Mr. Casey, are you also familiar with the
state statute that has a similar right of protest
under 414.5?
A. Yes.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Casey, I don't actually
have 414.5 as an exhibit, but I do have a copy here.
You're familiar with this code section, aren't you?
A. Yes.
Q. I'll give you an opportunity to review it,
but if you'll follow along with me, this one actually
says, "The protest, if filed, must be filed before or
at the public hearing." Is that what that indicates?
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707
A. Yes, it is.
Q. So at least Iowa Code 414.5 allows for a
signed protest to be filed at the public hearing,
doesn't it?
A. If it meets the requirements, that's
correct.
Q. Okay. Yet you did not allow the signed
petition to be put before the council on August 6,
2012, did you?
A. It did not meet the requirements.
Q. My question was: You did not let the signed
petition get in front of the council on August 6,
2012, did you?
A. It was not an appropriate petition.
Q. It's a yes-or-no answer, Mr. Casey.
A. I did not allow what was presented to me to
be submitted, that's correct.
Q. Mr. Casey, you were present at the August 6,
2012, meeting; correct?
A. Correct.
Q. You didn't see anyone take the podium and
speak in favor of Ordinance 770 to rezone the
property, did you?
A. I don't recall.
Q. So if we watched the video, that would
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708
probably be a better way to determine that?
A. Well, the video will speak for itself.
Q. Mr. Casey, you were aware or became aware at
some point in time that the wrong legal description
was used on the Ordinance 770; is that correct?
A. That's correct.
Q. And were you also aware that that same legal
description was used on the ordinance -- or the
resolution to establish an urban renewal district?
A. No.
Q. Let's start with the public hearing,
Mr. Casey. Were you -- you were aware, weren't you,
that the legal description that was used on the public
hearing notice that was published in the paper putting
the public on notice to rezone this property had the
wrong legal description?
A. No.
Q. You weren't aware of that?
A. No. What time frame are you speaking about?
Q. Well, I've got it up here on the screen.
MR. HENRY: I think the witness's question is
what time are you asking about the state of his
awareness.
Q. (BY MS. HESS) Mr. Casey?
A. Yes.
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709
Q. Prior to the public hearing on the rezoning,
were you aware that the notice that was published in
the paper setting the public hearing had the wrong
legal description?
A. No.
Q. Did you later become aware of a wrong legal
description?
A. Yes.
Q. That same legal description was used on a
resolution to establish an urban renewal district for
the rezoning, wasn't it?
A. I was not involved with anything having to
do with urban renewal area, that I'm aware of.
Q. And what about with regard to a resolution
to establish a tax increment financing?
A. I do not believe I was involved with that
either.
Q. Did you later learn that the same incorrect
legal description was used on each and every public
notice leading up to the time that you learned the
legal description was wrong?
A. The only thing I was aware of was that there
was a misdescription in the rezoning ordinance.
Q. Mr. Casey, I'm going to have you look at
Resolution 47-12, which is a City of Dyersville
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710
resolution to fix a public hearing notice. Are you
generally familiar with what the error was in the
legal description on the ordinance?
A. Now, is this the ordinance that rezoned the
property you're referring to?
Q. That's correct.
A. Yes, I am.
Q. And what was that?
A. There was an error in the description where
an incorrect, I believe, quarter-quarter section, I
believe southeast was used instead of southwest or
southwest instead of southeast or something similar to
that.
Q. Okay. So the southwest quarter of the
southeast quarter should have actually been the
southeast quarter of the southeast quarter, was that
your understanding?
A. Again, I'm not sure of the specific ones,
but if what you're telling me are the accurate
descriptions of those two quarter-quarter sections, I
would not disagree with that. There was a confusion
over two quarter-quarters.
Q. And during your deposition we talked about
this, and I asked you whether or not a legal
description is required on a rezoning, and you told me
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711
it wasn't. Do you remember that?
A. Yes.
Q. And is that still your answer?
A. Yes.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Casey, I'm going to hand
you a copy of the Dyersville City Ordinances. I
think you've already agreed that you're familiar with
them. Do you recognize that to be a copy of a
portion of Chapter 165?
A. Yes.
Q. Okay. And under 165.06, is that the
official map portion of the ordinance?
A. That's the caption, that's correct.
Q. Okay. Does this ordinance indicate that
amendments to the map shall identify the area affected
by legal description?
A. Yes.
Q. Would you agree with me that the legal
description is required on a rezoning?
A. In the ordinance, yes. And that's what we
had. We found there was a scrivener's error, and that
was corrected. So, in fact, it is -- the amendment
was by the proper description after the amendment was
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712
done.
Q. Okay. Well, let's talk about that
amendment. That would have been Ordinance 777?
A. That's correct.
Q. Mr. Casey, it's my understanding that that
ordinance came up as an agenda item; is that correct?
A. I don't recall how that did come up.
Q. Mr. Casey, in the white binder there on
your -- right in front of you up there should be a
book of exhibits. Can you get to letter T?
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
MS. HESS: Can I see that, Mr. Casey?
Q. (BY MS. HESS) Letter T.
A. I'm sorry.
Q. That's okay.
MS. HESS: I apologize, Judge. I'm trying to
find a -- let's try letter S. Okay.
Q. (BY MS. HESS) Letter S, does that appear to
be the agenda for the Dyersville City Council meeting
dated May 6, 2013?
A. Yes, it does.
Q. And on that agenda, was it set for
consideration of Ordinance 777?
A. Yes.
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713
Q. Mr. Casey, there was no public hearing set
for that -- for consideration of that ordinance, was
there?
A. The public hearing had been previously held
when the rezoning was considered, I believe, in August
of the prior year.
Q. August 2012 there was a public hearing on
Ordinance 770; is that correct?
A. On the rezoning of the property, that's
correct.
Q. But with regard to Ordinance 777, there was
no public hearing, was there?
A. Not specifically for Ordinance 777, but the
public hearing had been held for the rezoning of the
property.
Q. So we can agree that there was one hearing
on the rezoning of the property, and it was held on
August 6, 2012; is that correct?
A. To my knowledge, if there was anything else,
I'm not aware of it.
MS. HESS: I don't have any further questions.
THE COURT: Cross-examination?
MR. HENRY: Yes, Your Honor.
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714
CROSS-EXAMINATION
BY MR. HENRY:
Q. Why did you feel that the Ordinance 777 was
an adequate cure of the error in the legal
description?
A. Well, it was my understanding that there had
been a very clear explanation of what property was
being considered at the public hearing. This is
probably the one rezoning issue in the history of
Dyersville that I think everybody knew about.
Everyone knew exactly what property was being
considered. This was clearly a scrivener's error.
You would know as an attorney that these can happen
frequently. It just takes one letter or something or
a number to get put out of place. They're generally
very easy to fix.
I had consulted with other city attorneys in
larger areas concerning what was the appropriate way
to fix this, and the consensus was that this happens
frequently, just do an amendatory ordinance, that you
do not have to have a public hearing, if there had
been one, as long as there was fair and adequate
notice to the people that they understood what
property was being considered. And clearly in this
case, no one could truthfully claim that they thought
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715
that that 40 that was described was the 40 that
everyone understood was to be rezoned.
Q. With respect to Ms. Hess' letter as opposed
to her protest, did you take any step or prohibit her
in any way from presenting her letter as a part of the
public comment at the hearing?
A. No. That's happened before at public
hearings, and quite frankly, I expected she would
present it, and I believe she did in a sense in that
she read many portions from it, but she didn't -- she
chose not to present the letter itself during the
public hearing.
MR. HENRY: I don't have any other questions.
REDIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Casey, now, the map that you're talking
about, that's not actually published in the paper, is
it?
A. I don't know if it was or not.
Q. You don't know what everybody else in the
public would have known, do you?
A. You might have to be slightly more specific,
if you could, please.
Q. Well, you can't say that everyone knew about
that map unless they went to a City Council meeting,
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716
wouldn't you agree with that?
A. I would say that people clearly understood
what property was contemplated for the rezoning, and a
40 that was not connected to that Field of Dreams site
clearly was not contemplated.
Q. But nobody would have known that unless the
boundaries were described to them, would they?
A. Well, I think people clearly knew what
property was being considered.
Q. Mr. Casey, would you agree with me that if
only the legal description was published in the
newspaper, that that would be all that people had to
rely on in knowing what property was being rezoned?
A. Prior to going to the hearing?
Q. Yes.
A. That would be correct.
MS. HESS: I have no further questions.
MR. HENRY: I don't have anything, Your Honor.
THE COURT: Thank you, sir.
THE WITNESS: Thank you.
MS. HESS: Your Honor, we're going to watch the
video of the Ordinance 777 from the City Council
meeting.
THE COURT: How long is that video, do you
know?
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717
MR. HENRY: I'll tell you in a second, Your
Honor. May 6th, is that the one you want? The
cropped version is about six minutes.
THE COURT: Okay.
(The May 6, 2013, City Council meeting was
played at this time.)
MS. HESS: We call Mick Michel to the stand,
Your Honor.
MICHAEL MICHEL,
having been called as a witness on behalf of
Petitioners, having been first duly sworn by the
Court, was examined and testified as follows:
THE WITNESS: Yes.
THE COURT: Go ahead and have a seat. State
your name for the record, please.
THE WITNESS: Michael Joseph Michel,
M-i-c-h-e-l.
DIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Michel, who is your employer?
A. City of Dyersville.
Q. How long have you been employed with the
City of Dyersville?
A. Approximately over eleven years.
Q. And in what capacity are you employed by the
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718
City of Dyersville?
A. I'm the City Administrator.
Q. What are your duties as City Administrator?
A. I oversee the overall operations of the
City, and I work for the City Council and the mayor,
and I take directions from them as per the code
section.
Q. So would you agree with me that you're
required to act in accordance with both the Iowa Code
and in accordance with the City of Dyersville
ordinances?
A. Correct.
Q. Now, Mr. Michel, when did you first become
aware that the Stillmans were planning a commercial
development for the Field of Dreams area?
A. Sometime in -- right around October or
November of 2011, somewhere right around there.
Q. And you were present during these
proceedings when we watched a video from November of
2011 where the City was asked to do a feasibility
study on sewer and water, do you recall that video?
A. Don't recall the video, but I recall being
there.
Q. Were you present when the video was shown in
court?
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719
A. Yes.
Q. And at that time the City spent
approximately $9,600 on that feasibility study with
IIW; is that correct?
A. I believe so.
Q. And it's my understanding, in reviewing
these writ materials, that you were heavily involved
in that process in terms of communicating the scope of
the project with IIW; is that fair to say?
A. Can you repeat the question, please?
Q. Sure.
MS. HESS: I'll have the court reporter read it
back.
(The reporter read the record as requested.)
MR. HENRY: I object. The question is vague
with respect to the phrase "heavily involved." Need
some definition on that.
THE COURT: Well, I'll let him answer. Go
ahead.
A. Heavily involved, no.
Q. (BY MS. HESS) No, you were not?
A. I was involved but not heavily involved.
Q. Is it fair to say you sent at least 10,
maybe 15, e-mails back and forth with IIW with regard
to them developing the scope of services for that
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project?
A. Could be.
Q. Now, that feasibility study was something
that the Stillmans needed done to show their
investors, wasn't it?
A. I don't know.
Q. You don't know that?
A. I don't know.
Q. Following that feasibility study, is it your
understanding that the Stillmans were working to
secure sales tax rebate legislation in Des Moines?
A. Yes.
Q. And, in fact, you lobbied on their behalf,
didn't you?
A. No.
Q. You went to the state capitol in support of
that sales tax rebate, didn't you?
A. I went to the state capitol but not
necessarily for the sales tax rebate.
Q. Okay. For what purpose?
A. For securing funding for water and sewer for
the extension of that project.
Q. And what specifically did you do in Des
Moines to attempt to secure water and sewer for that
project?
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A. I met with legislators to try to see if they
can put some earmarks into their legislation for water
and sewer extensions.
Q. And that was the same legislation that was
for the developers' sales tax rebate, wasn't it?
A. Not necessarily.
Q. Mr. Michel, was there more than one piece of
legislation being proposed for the Field of Dreams
development that you were aware of?
A. Not that I'm aware of.
Q. Now, during this same time, you were
involved with the developer in establishing a timeline
for City procedures for this development to occur,
weren't you?
A. I was working on some -- some of those
items, that's correct.
Q. Okay. Let's take a look at Exhibit 48,
please.
A. Would it be in this book?
Q. Yes. Mr. Michel, on page 2 of Exhibit 48,
about halfway down the page, is that a copy of an
e-mail you sent to Denise Stillman on May 17, 2012?
A. I don't know who I sent it to, but it -- the
top line was written by me and I believe it said
Jacque.
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Q. Okay.
THE COURT: Turn to the second page.
THE WITNESS: Oh, I'm sorry.
MS. HESS: Thank you, Judge. I thought he was
there.
A. Sorry.
Q. About halfway down the page there.
A. Oh, okay.
Q. You see the e-mail to Denise from you --
A. Yes, I see the e-mail.
Q. -- dated May 17, 2012?
A. Yes.
Q. And in that e-mail, you indicate that you're
sending the e-mail "to re-emphasize that if you need
to have the zoning changed to a commercial designation
by August 31, 2012, below is the schedule that we will
need to follow." Did I read that correctly?
A. Can I review -- can I read the --
Q. Well, my question was, did I read that
sentence correctly?
A. Where did you see that sentence at?
Q. It's the first paragraph, last sentence.
A. I believe that's what it says.
Q. Okay. And below that you have set out
June 4, 2012, council meeting and you go on to list
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each and every council meeting all the way through
August 20, 2012, on the next page; correct?
A. I believe so. That's what it says.
Q. Okay. Mr. Michel, you actually had
scheduled phone conferences with the developer; is
that correct?
A. Yes.
Q. And approximately how often would those
scheduled phone conferences take place?
A. Anywheres from once a week to once every
other week or could be longer period of time.
Q. And during those phone discussions, you
would discuss development of this timeline, wouldn't
you?
A. I believe so, yes.
Q. And from those discussions, there was
actually a spread sheet created outlining all the
deadlines, wasn't there?
A. A spread sheet or a document?
Q. I'll actually have you turn to Exhibit 49.
That might help refresh your recollection.
A. Thank you. Thank you.
Q. Do you see Exhibit 49 there? That was an
e-mail to you from Jacque Rahe?
A. Hold on a second, please.
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Q. Sure. Take your time to review it.
A. Thank you. Thank you. Thank you.
Q. Just let me know when you're ready,
Mr. Michel.
A. Thank you. Okay. What was your question,
ma'am?
Q. Do you recall the finalization of that
timeline?
A. I see that there's an e-mail, but do I
specifically recall it? No.
Q. Okay. Well, maybe this will refresh your
recollection. On page 2 of Exhibit 49 -- and this
was an e-mail sent to you, wasn't it, from Jacque
Rahe?
A. I believe so.
Q. Okay. And then on the second page of that
e-mail, it's All-Star Ballpark Heaven/Field of Dreams
Movie Site Complex, Go the Distance Baseball, LLC. Do
you see that there?
A. It appears to be, yes.
Q. And then it indicates down at the bottom,
"This is a crucial 17-week work plan to achieve our
goal and close by August 31, 2012." Is that correct?
A. I believe it to be correct.
Q. Okay. And the developer was, it's my
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understanding -- and you can correct me if I'm wrong,
the developer was trying to have everything wrapped up
to close by this August 31st date, was that also your
understanding?
A. Can you repeat the question? I just want to
make sure --
Q. Sure. I'll have the court reporter read it
back.
A. Thank you.
(The reporter read the record as requested.)
A. I don't know.
Q. (BY MS. HESS) What was your understanding
as to why she needed all of these items to be
accomplished by August 31, 2012?
A. My understanding is she wanted to close on
the property, so she -- she developed this type of
timeline.
Q. And you were involved in that process,
weren't you?
A. I was involved in pieces of the process,
which would be just the City pieces of that process.
Q. Sure. And that would be the rezoning?
A. Yes.
Q. And the annexation?
A. Yes.
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Q. And she needed to have those things done
before August 31, 2012, didn't she?
A. She may have needed them done.
Q. And you were working with her to fashion
this timeline, weren't you?
A. I was working for the City trying to assist
her in developing those necessary rules that she
needed to send to the City Council.
Q. Okay. And she was putting pressure on the
City to meet these -- these deadlines, wasn't she?
A. She was -- she had some disagreements with
the city in how we were achieving those particular
timelines.
Q. Sure. She was putting some pressure on to
make sure that her timelines were met. She wasn't
happy that the City wasn't meeting her timeline, was
she?
A. There was some correspondence that she was
not pleased with how the City was moving forward.
Q. Her criticism was the City wasn't moving
fast enough, wasn't it?
A. Could be.
Q. And, in fact, in Exhibit 49, she calls this
a crucial -- "a crucial timeline to meet," doesn't
she?
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A. Where do you see that at?
Q. Page 2 of Exhibit 49, bottom line.
A. That's what it says on the attachment.
Q. Okay. Now, during this same time,
Mr. Michel, you learned that there were concerns in
the neighborhood that people had that lived in
Dyersville about this development; is that fair to
say?
MR. HENRY: I object. It's not specific as to
"this same time." Vague.
THE COURT: Do you want to just clarify what
time you're talking about?
MS. HESS: Sure.
Q. (BY MS. HESS) Mr. Michel, in and around
March of 2012, you became aware that the neighboring
landowners had concerns about the development being
located there, didn't you?
A. Do you have a reference point, a specific
reference point, or are you talking any time before
March or -- I don't understand your question.
Q. I'll try to put a timeframe on it. From
January 1, 2012, through May 1, 2012, did you learn
that some of the neighboring landowners had some
concerns about the development going at the Field of
Dreams property?
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A. They have approached the City Council on
some concerns, yes.
Q. Well, did you also learn outside the City
Council meetings about some of these concerns?
A. They have approached me in -- I believe in
about two times, two or three times. I believe it was
Matt Mescher or Wayne Ameskamp approached me a couple
times.
Q. What did they approach you about?
A. Water runoff issues.
Q. Anything else?
A. Not that I recall.
Q. Based on those concerns, did the city
conduct any studies prior to the rezoning about water
runoff impact on the neighboring landowners?
A. Prior to rezoning, no.
Q. Mr. Michel, can you turn to Exhibit 50 in
the binder? In your work as City Administrator, did
you receive a copy of the attachment to this e-mail,
Facts and Figures to Address Neighboring Farmers'
Concerns with All-Star Ballpark Heaven and Field of
Dreams Preservation Project?
A. It appears to be.
Q. And did you actually have some input in the
creation of this attachment? You can take your time
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to review it if you need to.
A. Thank you. It appears to be that I had
some involvement in it.
Q. You had some input in this, didn't you?
A. Yes.
Q. While you -- actually, let's go through it
while we have it out here. One of the concerns that
you were aware of was water and sewer infrastructure.
Now, this you had already somewhat addressed with the
feasibility study; is that correct?
A. The City Council initiated a scope of work
and approved an engineering agreement.
Q. Sure. You were involved in that, weren't
you?
A. I believe so, yes.
Q. And the next one is annexation. There were
some concerns in the community that if property got
annexed in, that -- well, people were concerned about
being annexed into the property, weren't they? Is
that what this concern kind of summarizes?
MR. HENRY: I object. Calls for speculation.
THE COURT: If he knows, he can answer.
A. Without reading the details of it, the
document appears to be what the document says.
Q. (BY MS. HESS) Okay. Mr. Michel, go ahead
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and review that annexation concern there so we can
talk about that. Again, you had input in the
preparation of this document; right?
A. I had input, but I wasn't the creator of the
document.
Q. Okay. Were you aware of what the concerns
were about annexation?
A. I was aware of some concerns about
annexation.
Q. What were those?
A. In reference to voluntary annexation or --
or involuntary annexation?
Q. Both.
A. Voluntary annexation would be in regards to
property taxes and what the property taxes would be
for inside the city limits and any hunting concerns
for annexing property. Involuntary would be in
regards to property owners who would be -- who would
be -- that their property would be involuntarily
annexed in to the city limits.
Q. Okay. Now, you, yourself, were involved in
negotiating for a voluntary annexation, weren't you?
A. Negotiating would be a loose definition.
Can you give me a definition of what you mean by
negotiating?
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Q. Sure. You were contacting people to try to
convince them to annex into the City, weren't you?
A. No.
Q. Mr. Michel, you worked with Jacque Rahe to
put together a letter to send to a property owner who
was a holdout on the annexation, didn't you?
A. I don't recall.
Q. You don't recall? Okay. I'm going to have
you turn to Exhibit 50. Sorry, 55, I believe. Is
Exhibit 55 an e-mail to you from Jacque Rahe attaching
a document which is a proposed letter on annexation?
A. It's a proposed letter, that's correct.
Q. Mr. Michel, there was one property owner who
was a holdout in the voluntary annexation, wasn't
there?
A. There was a property owner that had some
concerns about the voluntary annexation agreement.
Q. Okay. And that was John Rahe; correct?
A. No.
Q. Who was it?
A. Don and Becky Lansing.
Q. Okay. This letter that was drafted is
directed to John and Nicole Rahe, isn't it?
A. It appears to be.
Q. Okay. And this letter was drafted on your
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behalf, you were going to present this to John and
Nicole Rahe, weren't you?
A. I -- I put it on City letterhead and just
stored it on a file but never sent it out.
Q. Okay. Well, you intended to send this
letter out, didn't you?
A. Not necessarily.
Q. So John and Nicole Rahe never received this
letter?
A. Not that I'm aware of.
Q. You did talk with them personally then,
didn't you?
A. I did have a conversation with them. That
would be John Rahe I had a conversation with.
Q. Now, the annexation process had to be tabled
at least once because Mr. Rahe was a holdout on the
annexation process; isn't that correct?
A. No.
Q. Mr. Michel, was the annexation process
tabled at all?
A. Yes.
Q. For what reason?
A. I believe it was because Don and Becky
Lansing didn't sign the voluntary annexation.
Q. And there was some discussion or
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representation made that the -- that the developer was
doing the annexation negotiation, wasn't there?
A. Can you repeat the question? I just want to
make sure it's correct.
Q. Sure. There was some representation made
at a City Council meeting that the developer was
negotiating for the annexation, do you recall that?
A. The developer was trying to get the
signatures and having conversations with the property
owners who were trying -- that they were annexing the
property to.
Q. The City specifically said at a council
meeting that the City was not negotiating the
annexation, didn't they?
A. Correct.
Q. But, in fact, the City was negotiating it,
weren't they?
A. No.
Q. You, yourself, had discussions with Mr. Rahe
because he was not in agreement with the annexation;
isn't that true?
A. How you frame the question was a general
question. I had some discussions on answering his
questions in regards to taxation.
Q. And because he had those concerns, he wasn't
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ready to sign off on the annexation, was he?
A. I don't know. I wasn't -- I wasn't part of
those type of conversations.
Q. Who was?
A. I don't know.
Q. Do you still have Exhibit 50 in front of
you, Mr. Michel?
A. I'm sorry, what exhibit?
Q. Fifty.
A. Fifty?
Q. With the concerns of the neighbors attached
to it.
A. No, that was Exhibit 55. I can go to 50 if
you want me to.
Q. Yes, please do.
A. Okay. Thank you.
Q. The next concern that appears on that list
that you assisted in preparing says zoning, doesn't
it?
A. I believe so.
Q. What was the concern with zoning?
A. It talks about taxation and I believe
farming practices. It is what the document says it
is.
Q. Did you ever yourself go to Matt Mescher and
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talk with him about what his concerns were in terms of
farming practices with this rezoning?
A. I never approached Matt Mescher or went to
Matt Mescher, no.
Q. Did you ever go to Al and Cathy Demmer and
approach them about what impact this rezoning might
have on their farming practices?
A. Not that I'm aware of.
Q. Instead, you drew a 200-foot buffer strip on
both of their properties between the commercial and
their boundary line, didn't you?
A. I'm sorry, I don't understand your question.
Q. You didn't go talk to either one of those
property owners about their farming practices and the
impact that this rezoning would have on it, did you?
A. That's correct.
Q. Instead, you drew in on the map a 200-foot
buffer zone between their properties and the proposed
rezoned property, didn't you?
A. I prepared a map that had a 200-foot strip
that listed it as A-1.
Q. With regard to the extra-territorial
jurisdiction, what was the concern with that?
A. City's input of -- of zoning or subdivision
control.
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736
Q. So just to summarize, was there a concern
that the City would be able to exercise some control
over people who were in the county because of this
annexation?
A. It -- it could be implied that way, yes.
Q. And the last concern you have there is
farming practices. What was your understanding as to
concerns you were hearing about farming practices?
A. I'm sorry, could -- when you say "you," are
you referring that I prepared the document or are you
saying "you" in general?
Q. Both.
A. The document speaks for the farming
practices.
Q. Okay. What was your understanding of what
concerns were about people and their ability to do
farming practices with this rezoning?
A. There was individuals that approached the
City Council in regards to farming practices, and the
video speaks for itself, which is dry manure, aerial
spraying, and other farming practices.
Q. You didn't, on behalf of the City, initiate
any study to look into those concerns, did you?
A. The City Council did not.
MS. HESS: Your Honor, at this time would it be
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a good time to take an afternoon break?
THE COURT: We can do that. Sure.
MS. HESS: Okay.
(A brief recess was taken at this time.)
THE COURT: Please be seated, everyone. Okay.
Go ahead, Ms. Hess.
MS. HESS: Thank you, Judge.
Q. (BY MS. HESS) Mr. Michel, in your previous
testimony, you indicated that you had phone
conferences with the developer. Do you recall that?
A. Yes.
Q. And I missed your answer. How often did you
have those phone conferences?
A. I think I said it was, like, sometimes
weekly, other times it could be every other week or
upwards of monthly. There was no real set time.
Q. And I thought you testified that the
developer created that timeline. Was that your
testimony?
A. Can you give me a reference point, please?
Q. Sure. When we were talking about the
timeline for getting through the City's processes, I
believe you indicated the developer created that
timeline. I might be wrong on that.
A. You could be.
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738
Q. Now, during these phone conferences, you
actually discussed the desired method of communication
so that you could avoid any improper contact, didn't
you?
A. Can you repeat the question, please?
Q. Sure. During these phone conferences, you
actually had discussions about how communications
should be handled, didn't you?
A. I don't know.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Michel, you had an
agenda for these phone conferences, didn't you, a
written agenda?
A. Could be.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. Mr. Michel, does this appear to be an
All-Star Ballpark Heaven agenda for a May 15, 2012,
conference call --
A. It appears to be.
Q. -- with DEDC and City of Dyersville?
A. It appears to be.
Q. And you were the representative from the
City of Dyersville that was on this call, weren't you?
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A. It appears to be.
Q. And there was actually an agenda with
discussion items; correct?
A. Yes.
Q. And No. 2 on that list of discussion items
was "discuss desired methods of communication for each
party depending on the content of the communication."
Did I read that correctly?
A. Yes.
Q. And you discussed whether it should be by
e-mail, telephone or other?
A. It appears to be.
Q. And then Item No. 3 on the agenda, City
presents outline for annexation, development agreement
and rezoning process, and under that subparagraph A,
time duration of each, and letter B, any overlap that
can occur. Did I read that correctly?
A. I believe so.
Q. So those were the issues that were going to
be discussed, among other things, at this telephone
conference; is that correct?
A. It appears to be.
Q. There was some concern about certain people
having contact with the developer, wasn't there?
A. I don't know.
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Q. What was the purpose of having a discussion
on desired methods of communication for each party
depending on the content of the communication?
A. I have no idea.
Q. In any event, you had decided that it
warranted discussion for the -- for the telephone
conference?
A. I didn't write this document, so I don't
know.
Q. Well, you participated in it, in the
telephone conference?
A. I was apparently party of that conference.
Q. Okay. And during the conference, you
discussed the desired method of communication for each
party?
A. Did you use the word "you"?
Q. Yes.
A. I don't know.
Q. At least that's what's set out on the agenda
here?
A. It appears to be.
Q. Mr. Michel, I want to talk with you about
the City of Dyersville Comprehensive Plan, okay?
A. Sure.
Q. City of Dyersville does have a Comprehensive
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Plan; correct?
A. I believe so.
Q. And you would agree with me that City
Council decisions to rezone property must be
consistent with its Comprehensive Plan, wouldn't you?
A. I believe it's used as a guideline, yes.
Q. The City's Comprehensive Plan is a document
that's referenced in the state code, isn't it?
A. Could be.
Q. It's also referenced in the Dyersville City
Ordinances?
A. Do you have a reference point that I can
verify?
Q. It's somewhere in the Dyersville ordinances.
Would you like to get the ordinance out? I've got it
here.
A. It could be if --
Q. Turn to Exhibit 34, please, in your binder.
A. Thank you.
Q. Mr. Michel, do you recognize this to be --
Exhibit 34 to be Chapter 165 of the Dyersville City
Ordinances?
A. It appears to be.
Q. And under 165.02, does that set forth the
purpose of these zoning regulations?
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A. Yes.
Q. Would you agree with me that it states under
Purpose, "The Council deems it necessary in order to
lessen congestion in the streets; to secure safety
from fire, panic and other dangers; to promote health
and the general welfare; to provide adequate light and
air; to prevent the overcrowding of land; to avoid
undue concentration of population; to facilitate the
adequate provision of transportation, water, sewage,
schools, parks, and other requirements; to conserve
the value of buildings and property; and to encourage
the most appropriate use of land throughout the City
with reasonable consideration, and in accordance with
a comprehensive plan." Did I read that correctly?
A. I believe so.
Q. So does that suggest to you that the purpose
of the zoning regulations are to be in accordance with
a Comprehensive Plan?
A. It appears to be written as such.
Q. You dispute that for some reason?
A. Not necessarily.
Q. Mr. Michel, you gave a deposition in this
case, do you recall that?
A. I gave, I believe, two depositions.
Q. Okay. With regard to the deposition that
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you gave on November 24, 2014, do you recall that?
A. I recall I gave a deposition, I think, right
around that time.
Q. Okay. And you and I talked about the
Comprehensive Plan for the City of Dyersville, didn't
we?
A. We may have.
Q. Do you remember telling me when I asked you
if this rezoning was in accordance with the
Comprehensive Plan, you said there was an inference to
tourism. Do you recall that testimony?
A. No, but if that's what I said in my
deposition, that's what I said.
Q. When you were talking about the 1991
Community Builder Plan, did I indicate that it was
fair to say there wasn't anything in that Community
Builder Plan that addresses commercial use of the
property in that area that was proposed to be rezoned,
and you said, "not specifically," do you recall that?
A. I don't recall it, but if that's what I said
in my deposition.
Q. And you indicated that there were inferences
toward tourism and economic development?
A. If that's what I said in my deposition.
Q. Mr. Michel, do you know of any other way
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that this rezoning is in accordance with the
Dyersville Comprehensive Plan?
A. Can you repeat the question, please?
Q. Sure. Do you know of any other way, other
than what I just mentioned, that this rezoning is in
accordance with the Dyersville Comprehensive Plan?
A. It's in the plan.
Q. Do you know of any other reference other
than the one I just referred to?
A. It could be.
Q. But as you sit here today, you can't point
to anything in the Comprehensive Plan that shows that
this rezoning is in accordance with it?
A. I believe it is in accordance of the
Comprehensive Plan.
Q. Okay. Well, I have it up there in front of
you. Do you want to show me where it's in accordance
with the Comprehensive Plan?
A. Can you give me a reference point, please?
Q. Exhibit 1 through 6 are the Comprehensive
Plans.
A. And what was your question again?
Q. Sure. Can you show me how this proposed
rezoning for the Field of Dreams property from A-1 to
C-2 is in accordance with the Dyersville Comprehensive
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Plan?
A. Sure. Page 5 in Exhibit 5, it shows
loss -- Threats: Loss of Field of Dreams or other
major tourist attraction.
Q. Mr. Michel, stay there on page 5. You have
identified under threats, loss of Field of Dreams or
other major tourist attraction. Is that what you've
indicated?
A. That's what it states.
Q. Okay. Now, how is this rezoning consistent
with that as part of the Comprehensive Plan? The
Field of Dreams wasn't being lost as a part of this
rezoning, was it?
MR. HENRY: That's two questions. It's
argumentative.
THE COURT: Well, go ahead. You can either
answer either one of them or ask her to clarify it.
A. Could you clarify it?
Q. (BY MS. HESS) Sure. As a part of this
rezoning, the Field of Dreams was actually being
preserved, wasn't it?
A. That's what the petition was about. That's
what the resolution was about.
Q. Right. And the commercial part of this
rezoning had nothing to do with the loss of Field of
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Dreams, did it?
A. That's not true.
Q. In what way did the commercial development
have anything to do with losing the Field of Dreams?
A. The Field of Dreams wouldn't have been able
to operate under A-1 city zoning.
Q. Why not?
A. Because it's not permitted.
Q. Mr. Michel, are you familiar with Dyersville
City Ordinance Chapter 165.10?
A. Not right offhand, no.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Michel, I'm going to
show you the Dyersville City Ordinance on
Nonconforming Uses. Are you familiar with this
portion of the Dyersville City Ordinances? My
question was, are you familiar with it?
A. Not specifically, no.
Q. Okay. Well, does it indicate -- and if
you'll read along silently, I'll read aloud -- "The
lawful use of a building or land existing on the
effective date of the ordinance codified in this
chapter may be continued, although such use does not
conform to the provisions hereof." Did I read that
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correctly?
A. It appears to be.
Q. Field of Dreams could have continued to
operate as a nonconforming use, couldn't it?
A. No.
Q. And that's your opinion, isn't it?
A. Yes.
Q. Is there anything else in that portion of
the Comprehensive Plan that is consistent with this
rezoning?
A. Can I -- can I review again?
Q. Sure.
A. Thank you. On the same exhibit, page 7,
Goal: In expanding local economy for industrial,
commercial and tourist sections -- sector, excuse me.
Q. I'm sorry, were you done?
A. Yes.
Q. Now, under that objective, there are some
strategies for achieving that, aren't there?
A. It appears to be.
Q. And none of those strategies indicate that
the City of Dyersville should annex in property and
take agricultural land out of production, do they?
A. How you phrase the question, that appears to
be.
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Q. You don't see any strategies under that
objective that would seem to suggest that the -- that
property should be annexed into the City, do you?
A. It doesn't make any reference to annexation.
Q. It doesn't make any reference to rezoning
farmland, does it?
A. It doesn't state that.
Q. Anything else?
A. If you go to page 8, solidify Dyersville's
image in the Midwest.
Q. That's listed as one of the objectives?
A. That's correct.
Q. And this plan actually identifies two
strategies to achieve that objective, doesn't it?
A. That's correct.
Q. The first one is continue the strategic
planning process in order to determine what
Dyersville's image should be; correct?
A. That's correct.
Q. And the other strategy was make a short
video detailing what Dyersville has to offer,
location, jobs, well-kept homes, et cetera?
A. That's correct.
Q. So those were the two strategies that were
identified in this plan to achieve that objective; is
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that true?
A. That's what it states.
Q. Anything else?
A. If you go back to page 6, it states in
Assumptions About the Environment in Item No. 6,
without any changes to the Dyersville three main
tourist attractions, which identifies the Field of
Dreams.
Q. Well, if you continue reading, Mr. Michel,
it says, "Without any changes, Dyersville's three main
tourist attractions -- the Field of Dreams, Xavier
Basilica and the National Farm Toy Museum -- will
continue to attract a fairly constant number of
visitors. Dyersville also has some control over the
number of tourists it attracts to the level of
advertising and publicity it employs." Did I read
that correctly?
A. It appears to be.
Q. So, in fact, that was identified as an area
that would continue to draw and attract fairly
constant number of visitors without a rezoning;
correct?
A. I'm sorry, I don't understand your question.
Q. The assumptions that you've identified
indicate that those three tourist attractions will
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continue to attract a fairly constant number of
visitors, isn't that what this says?
A. In 1991?
Q. Yes.
A. That's correct.
Q. Anything else?
A. If you go to Exhibit 6, it reidentifies the
expanding local economy for the industrial, commercial
and tourism sectors.
Q. Mr. Michel, can you tell me what page number
you're reading from?
A. I'm sorry. It's on page 2.
Q. Okay. And, I'm sorry, what goal did you
identify?
A. Expanding local economy for the industrial,
commercial and tourism sectors.
Q. Okay. Now, when you identify goals, Goal
Specific Strategies in these comprehensive plans, they
actually have objectives underneath them to achieve
these goals, don't they?
A. It appears to be. There's objectives
underneath the goals.
Q. So not only are there objectives, but
actions suggested underneath, and none of these
strategies or actions include annexing in property and
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rezoning ag land, do they?
A. No, it doesn't appear to be.
Q. Anything else?
A. Page 10, An expanding local economy for the
industrial, commercial and tourism sectors, again.
Q. Mr. Michel, again, underneath that goal, it
lists out objectives and strategies and under
Objective B, one of the objectives to attain that goal
is to maintain existing downtown retail and service
businesses and fill vacant storefronts, isn't it?
A. That's correct.
Q. And then on the next page, Objective C,
under that same goal, Allow for continued growth and
development near U.S. 20 and along 136.
A. That's what it states.
Q. And encourage businesses, that require a
large amount of space and parking, to develop along
the highway.
A. That's what it says.
Q. And then, "Ensure that adequate land and
infrastructure are available to develop along the
highway." Did I read that correctly?
A. That's what it says. Page 11, Objective D.
Solidify Dyersville's image in the Midwest.
Q. And there are two strategies identified
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under that objective: To continue the strategic
planning process in order to determine what
Dyersville's image should be; correct?
A. Correct.
Q. And No. 2, "Make a short video detailing
what Dyersville has to offer: Location, jobs,
well-kept home, et cetera." We've already covered
that, haven't we?
A. It may have been in 1991, but it's in the
1997 plan.
Q. Okay. Anything else?
A. Objective F, "Become more aggressive in
meeting the needs of existing businesses and
industry."
Q. And again, there are strategies identified
under that, aren't there?
A. Yes.
Q. And none of those strategies talk about
expanding out to the Field of Dreams location, do
they?
A. Can you repeat the question?
Q. Sure. None of these strategies listed
under that objective contain language that would --
that indicates that the City of Dyersville should
expand out to the Field of Dreams area, does it?
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A. I don't know.
Q. Can you identify anything else in the
Comprehensive Plan that you believe to be consistent
with this rezoning?
A. There could be more, but with the short time
frame, that's all I can identify as of right now.
Q. Mr. Michel, I want you to -- this is your
opportunity to tell the Court how it's consistent with
the rezoning in the Comprehensive Plan, so go ahead
and take your time and let me know if there are any
other things in the Comprehensive Plan you believe
make this rezoning in accordance with or consistent
with it.
A. From what I can see --
MR. HENRY: I object to the -- the instruction
of Counsel to the witness, and I object to the
statement of Counsel to the witness that this is your
opportunity. It is not -- that's not proper. This
is not an opportunity. This is an occasion when the
Plaintiffs' attorney is to ask questions. The
witness has indicated he's answered the question as
far as he can at this point. It's not a matter of
opportunity and this is not a dare contest.
THE COURT: Well, if he wants more time to look
at it, I'll give him more time. If he -- if he
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doesn't have anything else to answer right now, go
ahead and just ask another question.
MS. HESS: Okay.
Q. (BY MS. HESS) Mr. Michel, all those things
that you just identified for me, none of those were
future land use maps, were they?
A. It doesn't appear to be.
Q. And you were present when Mr. Shires
testified, weren't you?
A. Yes.
Q. And he identified for the Court that the
future land use maps don't show this parcel of
property as something that was anticipated or in the
Comprehensive Plan. Were you present for that?
A. I was present.
Q. Now, the Dubuque County Comprehensive Plan
wouldn't apply to the City of Dyersville, would it?
A. That's correct.
Q. City of Dyersville never adopted a Dubuque
County plan, did they?
A. That's correct.
Q. And everything that you've pointed out to
the Court, those are all inferences to tourism, aren't
they?
A. I don't understand your question.
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Q. The areas that you pointed out in the
Comprehensive Plan, you referred to those during your
deposition as an inference to tourism?
A. If that's what I said, that's what I said.
Q. Let's talk about the 200-foot buffer strip
that was put in on the zoning ordinance.
A. Do you have a reference point?
Q. Yeah, I'm going to ask a question. I was
just turning your attention to that issue.
Mr. Michel, do you remember telling the
Dyersville Planning and Zoning Commission on July 9,
2012, do you remember telling them about the 200-foot
buffer strip?
A. Do I remember specifically?
Q. Yes.
A. No, but there's an audio tape that was
played here.
Q. And do you recall that you told them that it
worked very effectively when there was a lot of
disagreement with the ethanol plant?
A. Could be.
Q. And you used that 200-foot buffer strip at
the ethanol plant to preserve or protect agricultural
interest, didn't you?
A. Is that what I said? I don't know.
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Q. Do you recall at a City Council meeting
making the statement that the 200-foot buffer zone
worked well at the ethanol plant for agricultural
practices?
A. If that's what I said, yes.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. (BY MS. HESS) Mr. Michel, you were the
City Administrator when the ethanol plant was rezoned;
is that correct?
A. I believe so.
Q. And you implemented a 200-foot buffer
strip -- Shelly, do you want to get the lights? And I
don't know if it's easier for you to see on the
screen. You've got a map in your binder, and I've
also -- it's 44, and I've also got it here for the
Court's reference.
Now, the ethanol plant is out on the west side
of the City of Dyersville; is that correct?
A. Yes.
Q. And on Exhibit 44, we can see here the
200-foot buffer strip around the front part of the
ethanol plant where that was rezoned. Can you see
that?
A. I see an A-1 zoning on north end of the
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property.
Q. That's your A-1 buffer strip around an I-3
industrial zoned property; is that correct?
A. It's not my buffer strip.
Q. Were you involved in preparing the rezoning
ordinance for the ethanol plant?
A. The City Attorney had prepared the zoning
ordinance.
Q. You were involved in that in some way?
A. Possibly, yes.
Q. Okay. You would agree with me that it's a
similar 200-foot buffer strip that was used on the
Field of Dreams rezoning?
A. Similar, yes.
Q. Now, you represented at the City Council
meeting that that was to protect agricultural
practices at the ethanol plant. Do you recall that?
A. If that's what I said, that's what I said.
Q. Okay. Now, these properties aren't actually
agricultural on the other side of that 200-foot buffer
strip, are they?
A. What was your question?
Q. The properties on the other side of that
200-foot buffer strip aren't agricultural, are they?
A. They're residential and agricultural.
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Q. They're actually commercial, residential and
then there's a small portion that's agricultural?
A. I wouldn't use the word "small."
Q. Okay. Mr. Michel, the first property
that's identified there, that's 3297; correct?
A. I can't see it. I don't know.
Q. Well, here, I'll show you.
MS. HESS: May I approach, Your Honor?
THE COURT: Yes.
Q. The first property there, 3297 Vine Road,
would you agree with me that's a commercial
designation?
A. Taxwise it's listed as commercial
designation.
Q. Okay. Do you have some reason to dispute
that that's the classification that's listed for that
property?
A. No, that's what's listed.
Q. There's no agricultural activity going on at
that property, is there?
A. I don't know.
Q. Well, if there would be, it would be in
violation of the zoning classification of commercial?
A. No, not necessarily.
Q. Do you believe that there are agricultural
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practices going on at this commercial location?
A. I don't know.
Q. Mr. Michel, the next property is 3295 Vine
Road, and that's the next one along the buffer strip,
would you agree with me? If you need to get down and
look at the map, feel free to do that. Would you
agree with me --
A. It appears to be.
Q. -- that's also a commercial designation,
isn't it?
A. I wouldn't use the word "commercial"
designation.
Q. Is that what's listed on the classification
for the property record in front of you?
A. For tax purposes.
Q. Okay. And then the next property is 3295
Vine Road, and that's the next parcel on the buffer
strip, would you agree with me?
A. I don't know. I can't see the --
Q. You can go ahead and step down. I want to
be fair to you.
A. Thank you. What was the number again?
Q. 3295.
A. So it's this one right here you're talking
about?
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Q. Yes.
A. Okay.
Q. Does that appear to be a commercial
designation?
A. I think I just testified to that.
Q. Okay.
A. In the tax classification, it's commercial.
Q. And the photograph of that, does that appear
to be a business?
A. It appears to be.
Q. Now, the next one down the line on your
buffer strip that's supposed to protect for
agricultural practices is 3291 Vine Road. Do you see
that?
A. I see that.
Q. And is that a residential classification?
A. It appears to be.
Q. Mr. Michel, the next one down the line, 3281
Vine Road --
A. Well, for tax purposes.
Q. Sure. And does that appear to be a
residential classification?
A. 3281, where is that at? Is that right here?
That's this one right here you think?
Q. Yes.
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A. Okay. It -- for tax purposes, it lists it
as residential.
Q. Okay. And 3273 Vine Road, does that also
have a residential classification?
A. It has a tax purposes for residential but at
that time it was residential and agricultural.
Q. Okay. And the last one, does that have --
appear to have an agricultural classification? The
last parcel of property around the bend there.
A. It's not the full document. Do you have
the full document?
Q. Based on this, does that appear to be a --
A. Can I see the last one?
Q. Sure.
A. Okay. What was your question again, ma'am?
Q. So the last parcel on the 200-foot addition
or the 200-foot buffer strip on the ethanol plant
appears to be agricultural classification; is that
correct?
A. It lists it as tax classification for
agricultural.
Q. And that was the only parcel along that
ethanol plant that was classified agricultural, wasn't
it?
A. No, I disagree with that. For tax
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purposes, I agree, but for actual land function, I
disagree with it.
Q. Mr. Michel, on the other side of those
properties, is there an abandoned railroad bed on the
north side?
A. I don't know what you mean by that question.
Q. If you get down and look at the map a little
bit closer, or maybe open the one up in your book --
A. What exhibit is it?
Q. 44.
A. And what was your question?
Q. Does there appear to be an abandoned
railroad bed just north of those properties there?
A. I don't know what you mean by a railroad
bed.
Q. Are you familiar with the ethanol plant
property at all?
A. I'm familiar with the ethanol plant
property, but I don't know what you mean by a railroad
bed. I don't know what that means.
Q. Is there also a creek back out behind there,
behind those properties?
A. On the north end, I believe so.
Q. Okay. Mr. Michel, would you agree with me
that on the opposite side of where the buffer zone is
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on the ethanol plant, that that is where there's
agricultural practices going on?
A. On the opposite side of what?
Q. The ethanol plant.
A. You mean the south side?
Q. Yes.
A. There's agricultural land, agricultural
practices on the south side, correct.
Q. Yet, there's no buffer zone on the south
side of the ethanol plant, is there?
A. Doesn't appear to be.
Q. There was a lot of controversy surrounding
the proposed rezoning for the ethanol plant, wasn't
there?
A. Could be.
Q. And you indicated that the 200-foot buffer
strip worked well when there was a lot of disagreement
with the ethanol plant?
A. If that's what I said.
Q. And again, at the ethanol plant, that
200-foot buffer strip took away the right of protest
of those neighboring landowners, didn't it?
A. Can you repeat the question?
Q. Sure. At the time of the rezoning of the
ethanol plant, that 200-foot buffer strip took away
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the right of the neighboring landowners to file a
protest, didn't it?
A. In how you stated it, yes.
Q. Similarly, you put a 200-foot buffer strip
around the proposed rezoning for the Field of Dreams
property to take away the right of protest of the
neighboring landowners; correct?
A. I don't understand your question. You keep
using the word "you."
Q. Mr. Michel, you drew this map; is that
correct?
A. Which map?
Q. The proposed rezoning map for Ordinance 770.
A. Do you know what exhibit that is or -- for a
reference point?
Q. Sure. Sure. Mr. Michel, if you look in
the white binder there, Exhibit YY.
A. That's this one?
Q. The white binder, yep.
A. You said YY?
Q. Yes.
A. And your question?
Q. You were at least involved in drafting some
of the Ordinance 770; is that correct?
A. No.
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Q. What about the map attached to Ordinance
770, were you involved in creating that map?
A. I created that map, yes.
Q. Now, this 200-foot buffer zone, I think you
already indicated, took away the right of protest of
the neighboring landowners at the ethanol plant;
correct?
A. Correct, in how you stated it.
Q. Okay. Now, you knew that there was
opposition to the proposed rezoning of the Field of
Dreams property before you created that map, didn't
you?
A. Define opposition.
Q. Well, I think you indicated to me, or at
least said during the Planning and Zoning Commission,
you referred to the opposition as the neighboring
landowners, the people that were opposed to this
project?
A. If that's what I said to the Planning and
Zoning Commission.
Q. And you were aware that there was a group of
people that were opposed to the rezoning before you
drew the map, weren't you?
A. There was a group of people that actually
had issues with zoning in regards to farming practices
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and conflicts with farming practices.
Q. And you were aware of that before you
drafted that map; correct?
A. I just drafted the map.
Q. And you were aware of the opposition by the
neighboring landowners before you drafted the map?
Yes or no.
A. Can you -- I don't understand your
question. Can you repeat it, please?
Q. Sure. Before you drafted the map that was
attached to Ordinance 770, you were aware that there
was a group of neighboring landowners that was opposed
to the rezoning, weren't you?
A. There was people who had issues with the
rezoning, correct.
Q. And you knew them to be the neighboring
landowners, didn't you?
A. Some of them were the neighboring
landowners.
Q. In particular, Matt Mescher, you knew he was
opposed to the rezoning, didn't you?
A. Matt Mescher did state he was opposed to the
rezoning.
Q. And you didn't ask Mr. Mescher if he wanted
a 200-foot buffer zone, did you?
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A. No.
Q. And you knew that Al and Cathy Demmer were
opposed to the rezoning, didn't you?
A. That, I don't know.
Q. But you never asked them if they wanted a
200-foot buffer zone, did you?
A. No.
Q. So that 200-foot buffer zone worked so well
at the ethanol plant, that the City hatched a plan to
use the same 200-foot buffer zone on the Field of
Dreams rezoning; would you agree with that?
MR. HENRY: I object. It's argumentative. It's
pejorative. It's not a question, it's an argument.
THE COURT: Well, the only part that's
argumentative is to say "hatched a plan," but other
than that, I'm going to let the question go.
Go ahead. You can answer it.
A. I'm sorry, I don't understand your question.
Q. (BY MS. HESS) Well, it worked so well to
quiet the opposition at the ethanol plant that you
used the same method at the Field of Dreams proposed
rezoning, didn't you?
A. I don't know what you mean by "quiet the
opposition."
Q. Well, that was the effect of it; it took
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768
away the neighboring landowners' right to file a
protest, didn't it?
A. In how you state it neighboring landowners,
it took away the ability for the neighboring
landowners to file a protest.
Q. And, in fact, you admitted at the Planning
and Zoning Commission that this 200-foot buffer zone
took away the right of a protest, didn't you?
A. Didn't take away the right to a protest, no.
Q. Mr. Michel, do you recall Mr. Mescher
appearing at the July 9, 2012, Planning and Zoning
Commission and handing out a copy of Iowa Code Section
414.5?
A. I think he did.
Q. And he indicated -- and he indicated that he
believed that that removed their ability to protest,
do you recall that?
A. He may have.
Q. And you confirmed that it removed Matt
Mescher's ability to protest, didn't you?
A. If that's what I said.
Q. Do you dispute that that's what you said?
A. No.
Q. Mr. Michel, there was a Memorandum of
Understanding entered into between the City of
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Dyersville and the developer, do you recall that?
A. Do you have a reference point, please?
Q. Sure. I'll call the exhibit up.
Exhibit 7 in the black binder in front of you.
A. I'm sorry, what exhibit again?
Q. Seven.
A. Is there a way that I can get a little bit
more lighting? I have a reflection in the back and I
have -- that works. Thank you.
Q. Do you have the Memorandum of Understanding
in front of you, Mr. Michel?
A. Yes.
Q. Do you recall when the City and the
developer entered into that agreement?
A. I believe it was at a council meeting.
Q. And that was dated June 18, 2012; is that
correct?
A. Yes.
Q. And at that time the City was agreeing to
use its best efforts to rezone this property, the
Field of Dreams property; is that your understanding?
A. That's what the document says.
Q. And you were present at the City Council
meeting when that was signed and agreed to; is that
correct?
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A. I was at the City Council meeting, but I
don't know if I was present when it was signed and
agreed to.
Q. Well, at least at some point following the
meeting, you would have seen a signed copy of that
Memorandum of Understanding, wouldn't you?
A. A signed copy?
Q. Yes.
A. I don't know if I was present when -- when
the document was signed.
Q. Well, you don't dispute that it's been
signed though, do you?
A. No.
Q. Mr. Michel, you were aware that there was at
least one City Council member that was not in favor of
this rezoning at the time you drew that map, weren't
you? And when I say map, I'm referring to the one
attached to Ordinance 770.
A. Oh, I don't know.
Q. You didn't know that Molly Evers was making
statements during City Council meetings that she had
questions and concerns with regard to this rezoning?
A. Which council meeting?
Q. Any council meeting where the Field of
Dreams property was discussed.
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771
A. She had questions to the City Council.
Q. Questions, that would be questions that were
concerning the rezoning and possibly not in agreement
with the rezoning; is that fair?
A. I don't know if it's fair or not, but I
don't necessarily agree with it.
Q. Mr. Michel, going back to the 200-foot
buffer strip, during the July 9, 2012, Planning and
Zoning Commission meeting, you indicated that in
addition to farming practices, that 200-foot strip
would address a concern about children playing
baseball up to the fence line. How would a 200-foot
buffer strip prevent children from playing baseball up
to a fence line?
A. Is that what I said?
Q. Yes. If you want to see a copy of the
transcript, I can certainly bring it up.
A. Could I, please?
Q. Sure.
MS. HESS: I'm on page 3.
Q. If you just want to read silently, I can
read it aloud. "What we believe the 200-foot strip
will accomplish, a reasonable test to make sure that
the farming practices can continue within that area.
There was a lot of issues of dry manure spread, liquid
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manure spreading, other farm practices, children
playing baseball up to the fence line, and we believe
that the site plan limiting it within the contents of
where C-2 zoning is at would be a reasonable test for
that principal use." Did I read that correctly?
A. That's what you read.
Q. Mr. Michel, how would a 200-foot buffer
strip prevent children from playing baseball up to the
fence line?
A. I just identified the issues of the reason
why.
Q. So you would agree with me that a 200-foot
buffer strip wouldn't prevent that?
A. I don't necessarily disagree with you.
Q. And a 200-foot buffer strip wouldn't do
anything to ameliorate any issues of manure spreading,
would it?
A. I -- define ameliorating.
Q. To solve, to resolve some problems within a
200-foot from manure spreading.
A. I believe it would.
Q. In what way?
A. DNR regulations state with the 200-foot
strip, and that was the reason why we added that.
Q. Now, DNR would be the one that would enforce
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that, wouldn't they?
A. Correct.
Q. So whether or not there's a 200-foot buffer
strip in there, DNR would enforce it with it or
without it, wouldn't they?
A. Correct.
Q. Now, with regard to property values, I
believe that was one of the stated purposes for the
200-foot buffer strip. Do you recall that?
A. Not specifically, no.
Q. Now, if you stated that one of the reasons
for it was to address a concern that somebody might
have had about property values, do you dispute that
you said that?
A. I don't dispute.
Q. How would a 200-foot buffer strip protect
against property values?
A. It prevents the ability of the developer to
file nuisance complaints to the adjoining neighbor.
Q. What stops the developer from filing a
nuisance suit?
A. I don't understand your question.
Q. How would a 200-foot buffer strip stop the
developer from filing a nuisance suit?
A. It doesn't prevent them from filing a
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nuisance suit, but it does prevent any -- any of the
infrastructure to go within that 200 feet.
Q. Well, there are other permitted uses in A-1
that would allow for the developer to use that
200 feet in any way they want, aren't there?
A. I wouldn't use the word any way they want.
Q. Well, under those permitted uses.
A. Under the permitted uses, yes.
Q. They could put a playground in that 200-foot
buffer strip, couldn't they?
A. Whatever's identified in that A-1 usage.
Q. Mr. Michel, when you addressed the Planning
and Zoning Commission on July 9, 2012, you made no
mention of the 2003 Annexation Plan, did you?
A. I don't know.
Q. Mr. Michel, you would agree with me that the
2003 Annexation Plan does not propose or anticipate
any annexation of property out to the Field of Dreams,
does it?
A. Do you have a reference point, please?
Q. Sure. The Annexation Plan map identified
in this exhibit doesn't show any annexation by the
City of Dyersville out to the Field of Dreams property
for more than 20 years, does it?
A. According to that map, that's correct.
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Q. That map was never amended and the 2003
Annexation Plan was never amended, was it?
A. I don't know.
Q. You're not aware of that, are you?
A. I don't know.
MS. HESS: I don't have any further questions.
THE COURT: Cross-examination.
MR. HENRY: Thanks.
THE WITNESS: Can I just take, like, a
three-minute break?
THE COURT: Yeah.
MR. HENRY: Okay.
THE WITNESS: I've been up here over an hour.
THE COURT: We can take a short break.
THE WITNESS: Just three minutes.
THE COURT: No problem.
THE WITNESS: Thank you.
(A brief recess was taken at this time.)
THE COURT: Okay. Cross-examination.
MR. HENRY: Thank you, Your Honor.
CROSS-EXAMINATION
BY MR. HENRY:
Q. Would commercial use be permitted within the
A-1 buffer zone?
A. No.
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Q. And to that extent, the A-1 buffer zone
serves to insulate the adjoining property owner, the
farmer, from the commercial use by a distance of
200 feet?
A. Yes.
Q. On the south side of the ethanol plant
property, am I remembering correctly that the south
side is bordered by a road?
A. Yes.
Q. And then a set of railroad tracks north of
the road?
A. Yes.
Q. And those preexisted the -- the construction
of the ethanol plant?
A. Road, yes. Railroad, no.
Q. Okay. And then there's no -- no commercial
use south of the road; is that correct?
A. That's correct.
Q. Take a look at Exhibit 50, and specifically
the facts and figures page. Are you there?
A. Yes.
Q. Read the bottom line, the bottom paragraph,
the bottom two lines on that page.
A. "Prepared by the Economic Development
Corporation with guidance from Dubuque County Zoning
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Administrator, Dyersville City Administrator,
Department of Natural Resources and Department of
Agriculture."
Q. Does that statement accurately reflect your
understanding of your participation in that document?
A. Yes.
Q. Take a look at the 1991 Community Builder
Plan. I think it's Exhibit 5. And specifically the
introduction. It's on page 2, numeral 2 not the
preceding -- you know, the Roman numeral pages.
Numeral 2. You got it?
A. Yes.
Q. Does it read beginning in the middle
toward -- about two-thirds of the way down from the
first paragraph: "The most recent facet of
Dyersville's personality is tourism. The movie site
for 'Field of Dreams,' the Basilica of St. Francis
Xavier, the Dyer House and Doll Museum, the new
National Farm Toy Museum, as well as the renewed
tourist industry in Dubuque all contribute to make
Dyersville a 'must see' for thousands of tourists each
year"?
A. I'm not seeing that. On Roman numeral
number II?
Q. No, Arabic numeral number 2, Introduction.
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Are you there?
A. Yes.
Q. Sorry. "The most recent facet of
Dyersville's personality is tourism. The movie site
for 'Field of Dreams,' the Basilica of St. Francis
Xavier, the Dyer House and Doll Museum, the new
National Farm Toy Museum, as well as the renewed
tourist industry in Dubuque all contribute to make
Dyersville a 'must see' for thousands of tourists each
year." Accurate?
A. Yes.
Q. "Dyersville would like to keep all of these
different facets alive. The community is attempting
to maintain a balance between all of its elements and
not sacrifice one for another. Each of them are
important and each has ample room to grow and flourish
within the community." Accurate?
A. Yes.
Q. "In the Fall of 1991, the 'Community Builder
Planning Committee' and the citizens of Dyersville
scrutinized the community to determine what kind of
community Dyersville should be in the future. The
main concern that surfaced was that Dyersville must
become much more aggressive and in guiding and
encouraging its own growth." Right?
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A. Correct.
Q. Directing your attention to page 7, first
goal, "an expanding local economy in the industrial,
commercial and tourist sectors." Did I read that
right?
A. Yes.
Q. And under Strategy 3, "target businesses
that would complement Dyersville's existing
businesses." Did I read that right?
A. Yes.
Q. Look at page 8. "Objective F) Become more
aggressive in meeting the needs of existing businesses
and industry." Did I read that right?
A. Yes.
Q. And "Strategy 1) Regularly survey businesses
to determine" -- where -- that's not right.
MR. HENRY: Sorry, Your Honor.
Q. (BY MR. HENRY) Page 10, the goal is
improved community services to meet the needs of
the -- I'm sorry. "Adequate public capital
facilities." "Goal: Adequate public capital
facilities. Strategy 3) Encourage a public-private
partnership whenever possible." Did I read that
right?
A. Yes.
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MR. HENRY: I don't have any other questions.
THE COURT: Ms. Hess?
REDIRECT EXAMINATION
BY MS. HESS:
Q. Mr. Michel, it doesn't say anywhere in this
Comprehensive Plan that we should sacrifice
agricultural land for tourism, does it?
A. Correct.
MS. HESS: I have no further questions.
MR. HENRY: I don't have any questions.
THE COURT: Okay. Thank you, sir.
Okay. Should we quit for the day?
MS. HESS: Yes.
THE COURT: All right. Let's go off the
record.
(A discussion was held off the record.)
(The trial was adjourned at 4:22 p.m. on
February 19, 2015.)