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HomeMy WebLinkAboutA016 - Letter from Carney & Appleby, P.L.C. dated June 21, 2018 L -gA-1 v CARNEY & APPLEBY, P.L.C. ATTORNEYS AT LAW 400 HOMESTEAD BUILDING JAMES W.CARNEY 303 LOCUST STREET Telephone(515)282-6803 SCOTT A. HALL DES MOINES, IOWA 50309-1770 Facsimile(515)282-4700 DOUGLAS L.STRUYK DIANE L. DORNBURG OF COUNSEL KATRINA L. RAISCH GEORGE W.APPLEBY JENNIFER G. DORMAN www.carneyappleby.com E-mail:dorman@carneyappleby.com struyk@carneyappleby.com June 21, 2018 The Honorable John Haila, Mayor of the City of Ames LL Gloria Betcher,Councilwoman, City of Ames FVTim Ell Gratin,Councilman, City of Ames J U N 2 1 2018 David Martin, Councilman,City of Ames Chris Nelson,Councilman, City of Ames TY CLERK Bronwyn Beatty-Hansen, Councilwoman, City of Ames CITY OAF AMES. IOWA Amber Corrieri,Councilwoman, City of Ames RE: Proposed Downtown/Gateway Zoning Ordinance -Written Protest Dear Mr. Mayor and Members of the Ames City Council, Our firm represents a number of small business owners, owning property within the Downtown area subject to the proposed Downtown/Gateway Zoning Ordinance. Specifically, we represent at least twenty (20) percent of the land owners in the proposed Downtown Gateway Commercial Zoning Area as proposed in the Lincoln Way Corridor Plan. On May 22, 2018, pursuant to Section 29.1507(8) of the Municipal Code of the City of Ames,we filed a written protest, protesting the zoning map amendment for the Lincoln Way Corridor Plan. This written protest was signed by 36.6% of the affected property owners or agents authorized to sign on their behalf. At this Ames City Council meeting the validity of our written protest was questioned and rendered invalid. Looking to the City Attorney's challenges to the petition itself,we found that Iowa Code § 414.5 is completely silent on any requirement that for a written contest to be valid and properly filed, the petition must contain the original signatures and be physically presented to the city clerk. Neither does it contain the word signature. Additionally, under Iowa Law, "'[f]ailing to comply with every word of a statute is not fatal in every situation." Residential & Agric. Advisory Comm., LLC v. Dyersville City Council, 888 N.W.2d 24,48 (Iowa 2016) (citing Gorman v. City Dev. Bd., 565 N.W.2d 607, 611 (Iowa 1997)). So long as the essential requirements, which establish compliance with the objective of the statute, are met, the statute has been substantially complied with. See id.; Obrecht v. Cerro Gordo Cty. Zoning Bd. of Adjustment,494 N.W.2d 701, 703 (Iowa 1993). "'[S]ubstantial compliance' means the statute or rule"'has been followed sufficiently so as to carry out the intent for which it was adopted." " Bontranger Auto Serv., Inc. v. Iozva City Bd. of Adjustment, 748 N.W.2d 483, 488 (Iowa 2008). Here, the intent of the writ protest law is arguably two-fold: (1) that the city clerk have the written protests;anI t the city council have notice of the written protests. By emailing the petitions nearls before the vote to the city clerk, it cannot be said that the city clerk did not have tions. Whether or not she opened the email is irrelevant. Furthermore,by referencing the written protest, and that we believed we had filed it, in our argument to the city council during the public hearing, notice was given to the council of the protest. The city's arguments at the council meeting were that they weren't sure there were sufficient signatures, that the signatures were copies, and that a physical copy of the protests were not given to the clerk. Clearly, these arguments center around literal compliance with the statute, not substantial. For a number of reasons, these arguments cannot stand. First, the statute does not outline any of these requirements. The statute simply demands written protests be filed without providing further guidance. Second, Iowa courts have routinely found that "substantial—as opposed to literal—compliance" is sufficient. See, e.g., id. Lastly, given recent case law and statutory enactments regarding electronic signatures and filing, the city's claims are without merit. See Burroughs v. City of Davenport Zoning Bd. of Adjustment, No. 17-0752, 2018 WL 2372570, at*8 (Iowa May 25, 2018). See also Electronic Transactions Act(Iowa Code § 554D),This is especially true given the presumption that is due from the city upon filing of the protests. See, e.g., Iowa Code § 362.6 (2017). Thus,the written protests filed on May 22, 2018 substantially comply with the statutory requirements and the written protest was validly filed. We formally ask for your reconsideration of your recommendation and decision regarding this matter. If you have any questions or wish to discuss this matter further prior the Council meeting on Tuesday, please do not hesitate to reach out to us. Sincerely, Jennifer G. Dorman Douglas L. Struyk Cc: Mark Lambert Steve Schainker