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IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY

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)
)
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. CVCV057723
Petitioners,
)
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 Courthouse
Dubuque, Iowa

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BEFORE:

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REPORTER:

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UPON THE PETITION OF

Hon. Thomas A. Bitter, Judge


Kelly Neyen, CSR, RPR
Dubuque County Courthouse
720 Central Avenue, Third Floor
Dubuque, IA 52001
Kelly.Neyen@iowacourts.gov

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TRANSCRIPT APPEALED: August 20, 2015


TRANSCRIPT ORDERED: August 24, 2015
TRANSCRIPT DELIVERED: September 28, 2015

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APPEARANCES:
SUSAN HESS
HAMMER, SIMON & JENSEN, P.C.
775 Sinsinawa
East Dubuque, Illinois
Appeared on behalf of Petitioners.
DOUGLAS M. HENRY
JENNY WEISS
NICK THOMPSON
Fuerste, Carew, Juergens & Sudmeier
200 Security Building
151 West Eighth Street
Dubuque, IA 52001
Appeared on behalf of Respondents.

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INDEX
WITNESS
PAGE
JAMES HEAVENS
Direct Examination by Ms. Hess........... 587
Cross-Examination by Mr. Henry........... 634
Redirect Examination by Ms. Hess......... 641
ROBERT PLATZ
Direct Examination by Ms. Hess........... 643
Cross-Examination by Mr. Henry........... 653
Redirect Examination by Ms. Hess......... 656
DAN WILLENBORG
Direct Examination by Ms. Hess........... 657
Cross-Examination by Mr. Henry........... 666
Redirect Examination by Ms. Hess......... 670
DEPOSITION OF DANIEL OLBERDING................ 642
MARC CASEY
Direct Examination by Ms. Hess........... 697
Cross-Examination by Mr. Henry........... 714
Redirect Examination by Ms. Hess......... 715
MICHAEL (MICK) MICHEL
Direct Examination by Ms. Hess........... 717
Cross-Examination by Mr. Henry........... 775
Redirect Examination by Ms. Hess......... 780

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Last Page of Volume IV.................... 780


Certificate of Shorthand Reporter.........1121

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(The trial resumed at 9:02 a.m. on February 19,


2015.)

THE COURT:

be seated.

witness?

Okay.

Good morning, everybody.

Please

Are we ready with another

MS. HESS: Judge, I think we're going to

conclude the Planning and Zoning audio from July 9,

2012.

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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

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finished listening to the entirety of the audio from

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the July 9, 2012, Planning and Zoning Commission

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meeting.

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Are we ready with another witness?

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MS. HESS: Yes, Judge.

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Can I do some setup

prior to starting?

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THE COURT:

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MS. HESS: We call James Heavens to the stand.

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Yes.

JAMES HEAVENS,

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having been called as a witness on behalf of the

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Petitioners, having been first duly sworn by the

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Court, was examined and testified as follows:

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THE WITNESS:

I do.

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THE COURT:

Go ahead and have a seat.

And

just state your name, please.

THE WITNESS:

MS. HESS: Thank you.

James Alan Heavens.

DIRECT EXAMINATION

BY MS. HESS:

Q.

Mr. Heavens, what is your address?

A.

866 5th Street Southwest, Dyersville.

Q.

Who is your employer?

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A.

US Feeds.

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Q.

What are you employed as?

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A.

I'm a cattle nutritionist.

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Q.

Now, it's my understanding that you are the

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former mayor of the City of Dyersville; is that

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correct?

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A.

That is correct.

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Q.

And I believe you told me you had two

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five-year terms; is that correct?


A.

Two five-year terms -- or two -- five

two-year terms.

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Q.

Five two-year terms.

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A.

Yes.

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Q.

So what years did you serve as mayor of City

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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.

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A.

Do you recall that?

I don't know if they asked us to do that or

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we volunteered to do that.

I think that was part of

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our contribution to the project to initiate that

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study.

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Q.

That study cost approximately $9,600?

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A.

I believe that's correct.

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Q.

Now, were you present -- I know you've been

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here during some of these proceedings.

Were you

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present when we watched the video of the November 21,

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2011, City Council meeting?

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A.

No.

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Q.

Now, Mr. Heavens, as far as you know prior

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to the rezoning, that was the only study that the City

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paid for, is that your recollection?

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A.

That is my recollection.

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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.

individual there.

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Q.

We did have a conservation

Mr. Heavens, I'm going to stop you for a

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second.

I guess I should have asked a better

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question.

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A.

Okay.

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Q.

Prior to the rezoning, the City didn't pay

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for any studies to be done that were requested by the

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public, did they?

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A.

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recollection, no.

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Q.

They didn't do a stormwater runoff --

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A.

No.

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Q.

-- study prior to the rezoning, did they?

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A.

No.

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Q.

Mr. Heavens, in November of 2011 when there

The City did not pay for any, to my

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were preliminary discussions about a feasibility

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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.

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Q.

You actually made two trips to Des Moines,

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didn't you?

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A.

Yes.

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Q.

And the first trip that you took was

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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

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have known in December of 2011 at the time they went

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on the bus trip that this property was going to have

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to get annexed into the City?

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A.

Probably, yes.

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Q.

And that it was going to have to get

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rezoned?

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A.

Yes.

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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:

Q.

Yes.

Mr. Heavens, I'm going to hand you an e-mail

that you sent to Jacque Rahe dated December 15th,

2011.

read aloud.

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Mr. Heavens, if you could follow along while I


Do you recognize this e-mail you sent to

Jacque Rahe?

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A.

Yes.

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Q.

And the re line is "Meeting with Governor

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Branstad on Monday, December 19th"?

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A.

Yes.

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Q.

And that's 2011; correct?

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A.

I would assume so, yes.

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Q.

And would you agree with me that your e-mail

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to her said, "I agree, we don't want to put Denise" --

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and when you say "Denise," you mean Denise Stillman,

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the developer?

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A.

Yes.

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Q.

In an awkward -- "in any awkward position

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with the Governor.

When we discussed going to Des

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Moines with Bob and Dan" -- and when you said "Bob and

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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.

want to 'pack the room' here.

cool with that.

We don't

They understood and are

I'll discuss this with them before

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Monday and see if they still want to make the trip

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with David Vaudt at 1:00.

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offer support if necessary and I want to keep them in

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the loop as best we can as there will come a time when

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we will need their yes votes on the project.

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it would be worth taking them to supper with us."

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Did I read that correctly?

They would be on site to

I think

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A.

Yes, you did.

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Q.

So you needed those two councilmen's yes

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votes on this project, didn't you?

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A.

In a general sense, yes.

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Q.

Now, you actually took a second trip -- you

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took a second trip to Des Moines; is that correct?

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A.

Yes.

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Q.

And on this trip, you actually took a

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Planning and Zoning commissioner with you; is that

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correct?

A.

took him with me.

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.

I don't know if I took -- I wouldn't say I


He attended the trip also.

Is that the developer standing there at the

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front of the bus?

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A.

It is.

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Q.

And are you sitting next to Roger Gibbs

A.

I think so.

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there?
It's not a very good picture

of me, but -- at the lower right, you mean?

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Q.

Yes.

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A.

I would say that's probably me.

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Q.

Mr. Heavens, Mr. Gibbs would have been aware

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that this property wasn't within the city limits at

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that time, wouldn't he?

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A.

Yes.

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Q.

And he would have also known that the

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property would have needed to be rezoned, wouldn't he?

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A.

I would assume he would know that.

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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.

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A.

I -- I would grant you that.

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Q.

Now, following these bus trips to Des

I may have.

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Moines, now that we're into early 2012, during the

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early months of 2012, you were working to get the

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sales tax rebate passed in the legislature for the

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developer, weren't you?

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A.

I was working with Representative Lukan and

Senator Hancock to accomplish that, yes.


Q.

And you were actively involved in contacting

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the people you knew in Des Moines to make that happen,

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weren't you?

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A.

Somewhat active.

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Q.

You were pretty excited when that passed and

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proud of the work that you had done to help that,

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weren't you?

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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?

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A.

As I recall, she had requested a timeline,

more of a guideline, and we did establish one, yes.

Q.

Okay.

A.

Which

Q.

The black one.

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A.

Okay.

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Q.

Thank you.

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A.

I'm there.

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Q.

Okay.

If you'll turn to Exhibit 48 in your

binder.
--

On page 2 of Exhibit 48, about

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halfway down, you were copied in on an e-mail dated

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May 17, 2012.

Do you recall that?

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A.

Only as reminded by this.

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Q.

And that was an e-mail from Mick Michel, the

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City Administrator, to the developer hammering out

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this timeline, wasn't it?

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A.

It appears so.

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Q.

And in this e-mail, Mick says he's

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reemphasizing that if the developer needs to have the

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zoning changed to a commercial designation by

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August 31, 2012, below is the schedule that we will

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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?

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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?

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A.

It does, along with also if they don't.

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Q.

Now, if you turn to the last page of the

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e-mail, do you recognize that as the final timeline

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that was established?

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A.

It would appear to be.

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Q.

And this -- the heading is "Timeline for

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Development Agreement, Annexation, Re-zoning Process."

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Did I read that correctly?

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A.

You did.

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Q.

And it was already predetermined that at an

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August 6, 2012, City Council meeting, there would be a

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public hearing on the zoning request?

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A.

Could you repeat the question, please?

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Q.

Letter F.

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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?

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A.

Well, I don't know if it would be

predetermined.

Q.

That's how it falls in the timeline.

Well, somebody created this timeline and

determined the dates that certain things would happen,

would you agree with that?

A.

I agree.

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Q.

And at the same time "Act on Zoning

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Ordinance - 1st Reading (may waive 2nd and 3rd

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readings)."

Did I read that correctly?

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A.

Correct, you did.

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Q.

And if you turn the page before that, that

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timeline was actually established before the rezoning,

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wasn't it?

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A.

Which page am I on here?

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Q.

Well, there's an e-mail attaching the

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timeline dated July, 2012.

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A.

Well, got the May one.

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7-12 -- okay.

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you.

This is July --

This one -- maybe I can hold it up for

This one here is what you're looking at?

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Q.

Sure.

So that was before the rezoning?

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A.

Yes.

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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.

Q.

There's another binder up there.

A.

Okay.

Q.

There you go.

A.

No. 7?

Q.

Yes.

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A.

Okay.

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Q.

Okay.

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I've got

--

I'm there.
Now, this Memorandum of

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Understanding was passed in March of 2012, do you

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recall that?

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A.

I recall it being passed, yes.

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Q.

That was prior to the rezoning?

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A.

Yes.

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Q.

That Memorandum of Understanding was entered

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into between the developer and yourself, as mayor for

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the City of Dyersville?

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A.

Yes.

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Dyersville, yes.

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Q.

Between the developer and the City of

And in that Memorandum of Understanding, the

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City agrees -- agreed to use their best efforts to

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annex and rezone the property of the Field of Dreams,

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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.

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Q.

And you didn't put any language in there

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that said you would remain impartial and assure that

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the rezoning proposal was fairly heard, did you?

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A.

There's no language in there to that effect.

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Q.

Essentially, this agreement meant that the

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City would use their best efforts to annex the land

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that the developer wanted from the City, didn't it?

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A.

To me, I guess, it means that we would run

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it through the normal processes, so to speak, keep it

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on the front burner, not ignore it.

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Q.

Okay.

Well, let's talk about ignoring

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things.

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Mr. Heavens.

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keeping this on the front burner, did she?

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I'm going to have you turn to Exhibit 54,

A.

The developer didn't think you were

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.

Q.

This is a copy of an e-mail chain between

Okay.

yourself and the developers.

Okay.

I'm there.

Do you recall that?

A.

I do.

Q.

Now, if turn to the second page of that

e-mail.

line is "please explain," isn't it?

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Bottom of the

page, e-mail from Denise Stillman.

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The first e-mail that was sent, the subject

A.

"Poor Jacque" -- "we believe".

Please

explain?

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Q.

I'm on the second page, bottom half of the

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A.

"Mayor Heavens and Mick" does it start out?

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Q.

Yes.

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A.

Oh, Please explain, subject line.

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Q.

Did I read that correctly?

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A.

You did.

20

Q.

Is it fair to say in this e-mail the

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e-mail.

The re line is "Please explain."


Okay.

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developer was raising concerns whether or not you were

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following her timeline, wasn't she?

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A.

That we were behind her timeline?

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Q.

Well, let's look at the e-mail a little

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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.

with but I personally have very little patience for

people not keeping their word or blaming Mike and I

aimlessly.

kept."

We are normally very easy to deal

Please don't make promises that can't be

Did I read that correctly?

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A.

Yes, you did.

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Q.

"We do not do business that way.

Had I

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known on April 11 that we wouldn't hear from the city

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again for another four weeks (which, again we did in a

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nice voice mail from Mayor Heavens this afternoon), we

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would have shifted strategy in what we tell potential

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investors.

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that the city is doing all it can to help get this

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project done.

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Did I read that correctly?

We cannot, in good faith, believe or say

We certainly don't feel that way."

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A.

You did.

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Q.

And now I'm going to direct you to the

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second -- to the bottom paragraph.

"I do not pretend

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to know where Jacque's job ends and Mick's begins.

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All I know is that someone dropped the ball these last

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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."

that correctly?

Did I read

A.

You did.

Q.

Based on that, was the developer funneling

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her communication through your City Administrator to

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avoid any impropriety?

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MR. HENRY: I object.

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THE COURT:

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15

Calls for speculation.

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

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way that I would answer that, Ms. Hess, is that most

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of the communication that was -- was between the City

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entity and the developers was through Jacque Rahe as a

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representative of the Dyersville Economic Development

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Corporation.

21
22

Q.

(BY MS. HESS)

I'm going to direct you back

to the first page of that e-mail, Mr. Heavens.

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A.

Okay.

24

Q.

Now, at the end of the e-mail chain, and

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this is still "please explain" but now it says

603

"confidential" in the re line.

top of the page?

A.

explain"?

Q.

Very top of the page, Exhibit 56.

A.

Okay.

Q.

"Please explain confidential" is the re

Is that right at the very bottom, "please

Very top of the page.

Okay, I'm with

you.

8
9

Do you see that on the

line.

Did I read that correctly?

10

A.

"Please explain confidential," yes.

11

Q.

Did I read that correctly?

12

A.

You did.

13

Q.

Now, this e-mail from Mike Stillman to you

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dated May 12, 2012, says, "Thank you Mayor, As I sit

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here at work this morning reading all these emails the

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overriding question that remains is:

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there or not?"

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of 2012?

Are the votes

Was that what he was asking you in May

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A.

Apparently was.

20

Q.

"I would have assumed by now that everyone

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would have a handle on this.

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know this so we can forthright with our investors

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because frankly we thought we had the overwhelming

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support of the city."

25

A.

You did.

Denise and I need to

Did I read that correctly?

604

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.

10

Q.

If you could turn to Exhibit 54.

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A.

I'm there.

12

Q.

Mr. Heavens, does this appear to be Molly

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Evers' May 22, 2012, e-mail to you requesting a Work

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Session on the Field of Dreams project?

15

A.

It is.

16

Q.

Would you agree with me that it is part of

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the policies that have been adopted by the City of

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Dyersville to hold work sessions on major issues?

19

A.

Certainly an option.

20

Q.

It's actually a policy that you've adopted,

21

isn't it?

22

A.

Not particularly, no.

I think it was part

23

of our goal-setting session, in one of the goal-

24

setting sessions that we had.

25

actually after the Field of Dreams project, but I

I think it was

605

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

10

planning and goal setting, weren't you?

11

A.

Yes.

12

Q.

And these are adopted by the City as policy,

13

aren't they?

14

A.

Yes. They're adopted as a -- by resolution.

15

Q.

Sure.

16

A.

Yes.

17

Q.

Now, if you turn to page 6 of that exhibit,

18

you actually entered into a Team Building Agreement.

19

"The Mayor and City Council reviewed a variety of

20

ideas relating to team building and building a better

21

working relationship"?

22

A.

Yes.

23

Q.

And down there under item number one on the

24

list, "Table items if City Council needs more

25

information (unless time sensitive)."

Did I read that

606

correctly?

A.

Yes, you did.

Q.

And then on number five, "More work sessions

on major issues (as an option)."

correctly?

Did I read that

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?

10

A.

No.

Which exhibit is that?

11

Q.

36.

The next one.

12

A.

Oh, okay.

13

Q.

Well, on the front page, you were the mayor

14

Page?

at the time; correct?

15

A.

Yes.

16

Q.

This is dated January 6, 2009; correct?

17

A.

Yes, it is.

18

Q.

And, again, it was adopted by the City?

19

A.

Yes.

20

Q.

By resolution?

21

A.

By resolution.

22

Q.

And on page 8 under -- let me know when you

23

get there.

24

A.

I'm there.

25

Q.

Under Organizational Effectiveness, "The

607

Mayor and City Council reviewed a variety of ideas

relating to improving organizational effectiveness to

accomplish the selected goals and priorities.

review and discussion, the Mayor and City Council

selected the following steps to improve organizational

effectiveness."

After

Did I read that correctly?

A.

You did.

Q.

And in the third bulleted point, "continue

9
10

holding work sessions on major issues."


that correctly?

11

A.

12

isn't it?

13

Q.

14

Did I read

It's the fourth bulleted point, actually,

It is.

Thanks for pointing that out.

Did

I read that correctly?

15

A.

Yes, you did.

16

Q.

And, again, the next exhibit, 37, dated

17

January 10, 2011.

18

at the time?

Again, you're the mayor, correct,

19

A.

Yes.

20

Q.

Page 8.

21

A.

I'm there.

22

Q.

Again, under Organizational Effectiveness,

23

fourth bulleted point down, "Continue holding work

24

sessions on major issues."

25

goal setting adopted, you continue to identify having

So each time there's a

608

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

10

don't recall having a work session between the

11

developer and the City Council?

12
13

A.

Could you point me to that?

refresh my memory with that?

I don't

Or can I
--

14

MS. HESS: May I approach, Your Honor?

15

THE COURT:

16

MS. HESS: I don't have another copy.

17

Yes.
Do you

want to look at this?

18

MR. HENRY: That's fine.

19

Q.

(BY MS. HESS)

Mr. Heavens, if you want to

20

follow along, I'll read aloud.

"Special meeting of

21

the Dyersville City Council, Monday, December 5, 2011.

22

Time:

23

7:01 p.m. Place:

24

Present, Mayor James Heavens, council members Michael

25

English, Molly Evers, Dan Willenborg, Bob Platz and

Immediately following city council meeting,


Council chambers.

Roll call:

609

Robert Kramer.

a future development of Field of Dreams property

presented by Mike and Denise Stillman for the All-Star

Ballpark Heaven.

7:58 p.m., seconded by Councilman English.

carried."

A.

You did.

Q.

So the developer requested a work session

9
10
11

The purpose of this Work Session was

Councilman Platz moved to adjourn


Motion

Did I read that correctly?

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.

12

Q.

The minutes at least reflect you had --

13

A.

We had one, yes, we did.

14

Q.

And you were present?

15

A.

Yes.

16

Q.

Mr. Heavens, let's go back to the e-mail

17

from Molly Evers.

18

A.

Which exhibit was that again?

19

Q.

54.

20

A.

54?

21

Q.

Are you there?

22

A.

I am there.

23

Q.

Okay.

24
25

Molly Evers sent this request to you

on May 22, 2012; is that correct?


A.

Yes, apparently she did.

610

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

10

session should be held before the issue of Annexation,

11

or the Development Agreement, is formally presented to

12

the Council.

13

Center for this?" Did I read that correctly?

Perhaps we could use the new Senior

14

A.

You did.

15

Q.

And then Molly Evers, Councilwoman Molly

16

Evers went on to say that she had -- was hearing some

17

serious concerns from the taxpayers about this matter.

18

And didn't she go on to outline some additional

19

information about her concerns?

20

A.

Yes, she did.

21

Q.

You actually responded to her on City

22

letterhead and denied her request for a Work Session,

23

didn't you?

24

A.

I did.

25

Q.

You indicated in the second paragraph to the

611

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.

10

Q.

Mr. Heavens, even though your own goals and

11

policies that you identified and adopted indicated

12

that you should have Work Sessions on major issues,

13

didn't they?

14

A.

It did.

15

Q.

Mr. Heavens, after the annexation went

16

through, the next step in the process was the

17

resolution to rezone the property.

18

with that?

Would you agree

19

A.

I would agree with that.

20

Q.

That resolution passed by the City Council

21

in July of 2012, do you recall that?

22

A.

I believe that's the correct date.

23

Q.

I'm going to have -- I have the resolution

24

up here, but you can refer to your binder, that would

25

be Exhibit 20 if you want to take a closer look in

612

your binder.

A.

Twenty, okay.

Q.

Okay.

Okay.

I'm there.

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

9
10

resolution that was used by the City; is that correct?


Page 2, Exhibit A.

11

A.

Yes.

12

Q.

And that was the same legal description that

13

was ultimately used on the ordinance, which was 770

14

that passed this?

15

A.

I believe there was an error in this.

16

Q.

But that was the same legal description that

17

was used; right?

18

A.

Yes.

19

Q.

And the one that passed had an error in it?

20

A.

It had an error in it, yes.

21

Q.

All right.

22

Let's look at the map that's

attached to that resolution.

23

A.

Okay.

24

Q.

I think you told me at your deposition that

25

you didn't have any input in drafting that map, did

613

you?

A.

Not really, no.

Q.

Do you know who drafted that map?

A.

Well, I guess it doesn't say on here.

would assume it would be a surveyor.

6
7

Q.

Would it surprise you to know that that map

was drafted by City staff --

A.

No.

Q.

-- for City of Dyersville?

10

A.

No, it wouldn't surprise me.

11

Q.

Isn't that likely who would have drafted

12

this map?

13

A.

Perhaps, yes.

14

Q.

There's no stamp from a surveyor on this

15

map, is there?

16

A.

No.

17

Q.

You don't know if any councilperson had any

18

input into how this map was drawn, do you?

19

A.

No, I don't.

20

Q.

Once that resolution was passed, the

21

rezoning was scheduled for a public hearing, wasn't

22

it?

23

A.

Repeat your question, Ms. Hess.

24

Q.

Sure.

25

Actually, I think I'll ask a better

question than that.

Once this resolution was passed,

614

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?

8
9
10

A.

As I recall, that is.

Without going back

and consulting the timeline, I think that's the way


that would work, yes.

11

Q.

Now, you, yourself, when you saw this

12

resolution, when you signed this resolution, you

13

didn't consult with the Comprehensive Plan to make

14

sure that this was in accordance with your plan, did

15

you?

16

A.

Not particularly.

17

Q.

And you didn't consult with the Annexation

18

Plan to see if this was consistent with your

19

Annexation Plan, did you?

20

A.

Well, in my own mind, I had consulted the

21

Comprehensive Plan and the Comprehensive Plan did not

22

forbid this.

23

Q.

You agreed with me during your deposition

24

that there's nothing in the Comprehensive Plan that

25

supports a commercial development in this area, didn't

615

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?

6
7

A.

The Comprehensive Plan in 2003 does not

speak to this, no.

Q.

Annexation Plan.

10

In fact, put the map up here of the 2003


Now, this was adopted by the City,

wasn't it?

11

A.

I believe so.

12

Q.

And it doesn't show the Field of Dreams

13

Yes, before I was mayor.

being annexed in at least out 20 years, does it?

14

A.

It doesn't speak to that, no.

15

Q.

There was never any discussion at any City

16

Council meeting that this rezoning was in accordance

17

with the Comprehensive Plan, was there?

18

A.

I don't think it was ever discussed, no.

19

Q.

You would agree with me that in doing any

20

rezoning, the City of Dyersville would be required to

21

follow zoning ordinances, would you agree with that?

22

A.

Yes.

23

Q.

They also have to follow state law?

24

A.

Yes.

25

Q.

And ultimately, it's the City Council's

616

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?

10

A.

I do.

11

Q.

And that deposition was on November 21,

13

A.

I assume that's the right date, yes.

14

MS. HESS: May I approach, Your Honor?

15

THE COURT:

16

Q.

12

2014?

Yes.

(BY MS. HESS)

Mr. Heavens, I asked you

17

that same question during your deposition.

18

follow along while I read aloud.

19

the City Council are required to keep an open mind

20

when they're considering a motion to rezone, would you

21

agree with that?"

22

A.

23
24
25

If you'll

"Now, members of

And you said, "Certainly"?

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?

617

1
2
3
4

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?

10

A.

Yes.

11

Q.

They're also required to act in accordance

12

with a Comprehensive Plan when they're making rezoning

13

decisions, would you agree with that?

14

A.

I think the Comprehensive Plan is a

15

guideline for them.

16

Plan, it's a guideline.

17

Q.

As it states in the Comprehensive

And state law actually requires and your

18

local ordinances require rezonings to be in accordance

19

with your Comprehensive Plan, don't they?

20

A.

I don't know that.

21

Q.

Do you remember during your deposition we

22

actually went through the City ordinances and the

23

state law and pointed out that you're required to act

24

in accordance with a Comprehensive Plan?

25

recall that?

Do you

618

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,

Q.

And not in the interest of the developer?

A.

I think they have to weigh the two.

10

Q.

You actually told me during your deposition

11

yes.

that they have to balance those two interests.

12

A.

Same thing, balance them.

13

Q.

And you told me that the general overriding

14

factor is to increase economic development, didn't

15

you?

16

A.

I may have.

17

Q.

Do you want to see your transcript?

18

A.

Well, I would grant you that, that that's

19

probably the overriding factor, the overriding

20

guidance maybe, but again -- but again, to balance

21

that between the interests of the local people and a

22

developer.

23
24
25

Q.

But you told me the overriding factor is the

economic development.
A.

I'll grant you that.

I may have.

619

1
2

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?

8
9

MR. HENRY: I object.

It calls for opinion and

conclusion about a matter of law.

It's counsel's

10

paraphrase or argument of what the statute provides.

11

It's unfair in form.

12

THE COURT:

Well, I'm going to let him answer.

13

He was the mayor for ten years.

14

if he knows.

I'll let him answer,

15

A.

I was aware of that, yes.

16

Q.

(BY MS. HESS)

18

A.

I was aware of that.

19

Q.

Were you also aware that the local

17

I'm sorry, I missed that

answer.

20

ordinances provide for that right of protest within

21

200 feet, and that would require a unanimous vote by

22

the council?

23
24
25

A.

I'm aware of something along those lines,

Q.

And this rezoning has a 200-foot buffer

yes.

620

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

A.

Okay.

Q.

Would you agree with me that on the west

here.

10

side of the proposed rezoning, there's no 200-foot

11

buffer strip?

12

A.

I can't quite read that, but A -- I would

13

say, Ms. Hess, that it doesn't look like there is

14

there.

15

Q.

So the property owners on the west side of

16

that proposed rezoned area would have the ability to

17

file a protest with the City, wouldn't they?

18

A.

I couldn't tell you that.

19

Q.

Well, it would appear that way by looking at

20

the map, wouldn't it?

21

A.

It would appear that way.

22

Q.

And, likewise, those property owners that

23

are -- that own property in the areas around the

24

200-foot buffer strip would not have the ability to

25

protest?

621

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

10

binder, Mr. Heavens.

11

A.

Okay.

I'm there.

12

Q.

Do you recognize this as Resolution 47-12,

13

to schedule a public hearing on the rezoning for the

14

Field of Dreams?

15

A.

I would recognize that as so, yes.

16

Q.

Now, this was the only public hearing that

17

was held on the rezoning, wasn't it?

18
19
20
21

A.

At the council level, I believe that's

Q.

Sure.

right.
The notice of the public hearing set

forth a legal description, would you agree with that?

22

A.

It does.

23

Q.

And this legal description also contained an

24

error, didn't it?

25

A.

It's my understanding it did.

622

1
2

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?

8
9

A.

I doubt if there was a map published in the

newspaper.

10

Q.

And at that public hearing, people would be

11

able to come forth and raise any concerns that they

12

had about this rezoning, wouldn't they?

13

A.

Yes.

14

Q.

And, likewise, you would anticipate that

15

someone would come and speak in favor of the rezoning,

16

wouldn't you?

17

A.

Perhaps.

18

Q.

Now, on August 6, 2012, you were present for

19

that public hearing?

20

A.

I assume I was, yes.

21

Q.

Mr. Heavens, do you need to watch the video

22

to refresh your recollection?

23
24
25

A.

I will give you that, Ms. Hess, that I was

Q.

Okay.

there.
You actually ran the meeting, didn't

623

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?

5
6
7

A.

I don't recall who spoke at what -- for

Q.

Mr. Heavens, in fairness to you, let's get

what.

the minutes out of the meeting, and would you agree

with me that the minutes would accurately reflect what

10
11
12

happened at the meeting?


A.

Pretty much so, yes.

They're approved.

glad to look those up here.

13

Q.

Will you turn to Exhibit 16?

14

A.

I am -- the council meeting and -- which

15

Are you there?

page are we on of the minutes?

16

Q.

Page 2.

17

A.

Page 2 of 4?

18

I'm

Where it starts out with,

Council Member English moved to open Public Hearing?

19

Q.

Yep.

20

A.

Okay.

I'm there.

21

Q.

Okay.

And actually, I guess, just to verify

22

that you were actually present, on page 1 there was

23

roll taken, roll call.

24

Heavens, Council Members:

25

Breitbach, Mike English, Bob Platz and Molly Evers.

Present:

Mayor James

Dan Willenborg, Mark

624

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.

rezoning, doesn't it?

10

A.

It says they're there to approve the

That's what it says, yes.

Probably

11

"consider" would be a better word than "approve,"

12

wouldn't it?

13

Q.

I would agree with that.

14

A.

Yep.

15

Q.

Now, the first item there is actually

16

myself, I appeared on behalf of my clients --

17

A.

You did.

18

Q.

-- do you recall that?

19

A.

I do.

20

Q.

And I had indicated that I was requesting

21

the City Council to remain impartial, didn't I?

22

A.

You indicated that, yes.

23

Q.

And I felt that the zoning commission did

24

not stay impartial because they attended a Work

25

Session put on by the developer, and I raised some

625

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.

9
10

Q.

favor of the rezoning, did they?

11
12

Not even the City Council members spoke in

A.

I don't -- I don't think they expressed an

opinion before they voted, no.

13

Q.

Okay.

14

A.

Perhaps one of them did right before the

15

vote, but not in a general sense.

16

ask for comments from the council, there was none of

17

them that really said much there, as I recall.

18
19

Q.

I mean, when you

The developer didn't even speak in favor of

this rezoning, did she?

20

A.

No.

21

Q.

No member of the City Council discussed any

22

evidence that they had in favor of the rezoning, did

23

they?

24

A.

Not that I recall.

25

Q.

No one discussed any studies, did they?

626

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

9
10
11
12
13
14
15
16
17
18
19
20

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.

21

Q.

So she expressed how she weighed some of the

22

evidence in this?

23

A.

Yes, she did.

24

Q.

And no other council person did, did they?

25

A.

No, not to my recollection, they did not.

627

Well, I'll take that back.

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 think there was one

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?

10

A.

Something to that effect, yes, certainly.

11

Q.

That wasn't weighing or considering any

12

studies, was it?

13

A.

I don't know how he arrived at that.

14

Q.

Would you agree with me that any

15

consideration on the rezoning needs to be conducted at

16

the public hearing?

17

A.

18

MR. HENRY: Object.

19

Ask that again.


Calls for an opinion of

law.

20

THE COURT:

21

MS. HESS: I'll have it read back.

22

(The reporter read the record as requested.)

23

A.

No.

24

Q.

(BY MS. HESS)

25

Overruled.

Go ahead.

I would not agree with that.


Mr. Heavens, where would

such discussions take place if they don't take place

628

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.

MR. HENRY: You know, and I object --

Q.

rezoning.

10

Amongst the council people.

The people that are considering the

MR. HENRY: I object to counsel's change of the

11

wording of her question.

The previous question was --

12

THE COURT:

13

MR. HENRY: -- consideration and now she's

Consideration.

14

talking about discussion.

15

It's unfair in form.

16
17

THE COURT:

I think it's misleading.

It's noted.

The original question

was any consideration should be held at the meeting.

18

MS. HESS: Sure.

I'll ask --

19

THE COURT:

20

MS. HESS: Yeah.

21

A.

Well --

22

Q.

(BY MS. HESS) Go ahead.

23

A.

Go ahead.

24

Q.

No, go ahead with your answer.

25

A.

Well, I think that the way that I would

Do you want to ask it again?

629

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.

just a lot of discussion that went on with that.

Now, would that be confined strictly to a public

hearing on the matter?

so.

10

Q.

Sure.

There's

I would say not necessarily

In fact, some of these City Council

11

members actually had their mind made up in favor of

12

the rezoning prior to the public hearing, didn't they?

13

A.

They could have.

I don't know that.

14

Q.

Would you agree with me, Mr. Heavens, that

15

any discussions with relation to the rezoning have to

16

be held at the public hearing?

17

A.

No.

18

MR. HENRY: I object.

19

A.

20

MR. HENRY: Calls for an opinion of law.

21

THE COURT:

22

Q.

No.

I would not agree with that.

Overruled.

(BY MS. HESS)

You believe that City

23

Council members can have discussions with regard to a

24

rezoning outside of a public hearing?

25

A.

Sure, they can.

I don't know how else they

630

would do it.

2
3

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

10

quasi-judicial process, kind of like a judge-like

11

decision?

12
13

MR. HENRY: I object.


law.

14
15

Calls for an opinion of

THE COURT:

That one probably does.

I'm not

going to have him answer what the standard is.

16

Q.

(BY MS. HESS)

Mr. Heavens, when the motion

17

was made to close the public hearing, a vote was

18

taken, wasn't it?

19

A.

I would assume so.

20

Q.

But prior to that vote, I requested that the

21

City Council not vote until they had an opportunity to

22

review the letter that I had filed with the City

23

Clerk?

24

A.

Yes, that's true.

25

Q.

And in that letter, I advised the council

631

that I had attached to that a signed petition, signed

by neighboring landowners in opposition to this

rezoning.

A.

You stated that, as I recall, yes.

Q.

And the council didn't have an opportunity

Do you recall that?

to consider that evidence at the public hearing, did

they?

8
9

A.

I think what happened there, as I recall,

Ms. Hess, that I certainly let you say what was in

10

your letter.

11

actually received it, I think you did hand something

12

out to the council, perhaps that was a copy of your

13

letter, but on the advice of the City Attorney, it was

14

not something that we received and filed at the -- at

15

the council meeting.

16

Q.

Now, as far as whether the council

Mr. Heavens, the City Attorney actually

17

spoke and said that he wasn't going to hand my letter

18

out to the council members, do you recall that?

19

A.

I recall that, yes.

20

Q.

So the council didn't actually have my

21
22

letter or the signed petition, did they?


A.

I don't -- you know, Ms. Hess, I really

23

don't know whether they physically got it or not.

24

guess my attempt there was to let you read what was in

25

your letter and express that to the council.

632

1
2

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

9
10

the council, do you know if that would have required a


unanimous vote by the council?

11

A.

I don't know that.

12

Q.

Certainly a possibility, would you agree

13

with that, based on your --

14
15

A.

It's not outside the realm of possibility,

Q.

Mr. Heavens, you knew prior to the public

no.

16
17

hearing that Councilperson Evers was not in favor of

18

this rezoning, didn't you?

19

A.

20

favor of it, yes.

21

Q.

Came as no surprise to you that she voted

A.

Not a huge surprise, no.

22
23

I think she sent signals that she was not in

no?
I remember she

24

did wish the developer well with her project, but she

25

didn't vote for it.

633

1
2

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.

of surprise that all four of them -- or the other four

voted for it.

I guess it -- again, it is not out of the realm

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?

10

A.

Several months before, yes, I know that two

11

of them did go and lobby for a sales tax exemption for

12

the project.

13

Q.

Mr. Heavens, following the vote on the

14

rezoning, you did not win the election to the City

15

Council, did you?

16

A.

No, I did not.

17

Q.

And you told the media that that was a

18

referendum on the Field of Dreams project, didn't you?

19

A.

That was my first blush on it, yes.

20

Q.

And you were not too happy that the

21
22

referendum voted you out of office, were you?


A.

Oh, I wasn't particularly saddened.

You

23

know, I really didn't want to run again.

You know,

24

I'm a believer in term limits, and I had been there

25

ten years, and I guess I was asked by several of the

634

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:

(A brief recess was taken at this time.)

THE COURT:

10

Let's take a short break.

Please be seated, everyone.

Okay.

Cross-examination.

11

CROSS-EXAMINATION

12

BY MR. HENRY:

13

Q.

Mr. Heavens, I think it was probably

14

inadvertent, but I need to clear up something.

In

15

her question to you about the Memorandum of

16

Understanding, Ms. Hess said that, as a predicate for

17

her question, that that was adopted in March of 2012,

18

and you said you didn't know.

19

Exhibit 7 and tell me the date on that, the Memorandum

20

of Understanding?

21

A.

The date on this is June 18, 2012.

22

Q.

Okay.

Would you look at

Now, there was -- there were a

23

series of questions about e-mails from Denise or Mike

24

Stillman about the City's sincerity in this effort

25

that you were asked about.

Those were in May of

635

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

10

Understanding was used?

11

A.

Yes.

12

Q.

Okay.

13

development agreement?

14
15

As opposed to cutting right to a

A.

Yes.

A Memorandum of Understanding was used

first, yes.

16

Q.

Okay.

You were asked several questions

17

about work sessions and tabling and that sort of

18

thing.

19

December 5th minutes, the Work Session was described

20

in the minutes as a special meeting?

Am I right that in the -- as we looked at the

21

A.

Can you point me to that?

22

Q.

It's the minutes dated December 5, 2011, in

23

the white binders in front of you, Respondent's

24

Exhibit E -- B?

25

(Whereupon, the reporter interrupted the

636

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

10

particularly direct the attention of the Court to

11

Section 17.4 relating to meetings of the City Council.

12

THE COURT:

Ms. Hess, any objection to that?

13

MS. HESS: No objection to the Court taking

14

judicial notice.

15

questions he's going to ask.

16
17

THE COURT:

I guess I'll wait and see what

Okay.

I will take judicial notice

of that.

18

Q.

(BY MR. HENRY)

And, Mr. Heavens, with

19

respect to special meetings, can I direct your

20

attention to Section 17.04(2)?

21

right:

22

the Mayor or upon the written request of a majority of

23

the members of the Council submitted to the Clerk;"

24

did I read that right?

25

Am I reading this

"Special meetings shall be held upon call of

A.

You did.

637

1
2

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:

MS. HESS: No objection.

THE COURT:

10
11

Any objection?

I will take judicial notice of

that.
Q.

(BY MR. HENRY)

And directing your

12

attention -- Mr. Heavens, directing your attention to

13

15.02(3), special meetings.

14

duties of the mayor are as follows:

15

Special Meetings:

16

Council when the Mayor deems such meetings necessary

17

to the interests of the City."

18

correctly?

15.02, the powers and


Subsection 3,

"Call special meetings of the

Did I read that

19

A.

You did.

20

Q.

Did you deem a special meeting, in your

21

You did.

discretion, necessary in the interest of the City?

22

A.

Not particularly necessary, no.

23

Q.

Directing your attention to Section

24

15.02(6), do you remember the introduction?

"The

25

powers and duties of the Mayor are as follows:

638

Subsection 6, Negotiations:

"Represent the City in

all negotiations properly entered into in accordance

with law or ordinance.

the City where this duty is specifically delegated to

another officer by law, ordinance or Council

direction."

The Mayor shall not represent

Did I read that right?

A.

You did.

Q.

In the scope of your duties as mayor, did

9
10

you meet with and confer with Mr. and Mrs. Stillman
regarding this proposal?

11

A.

The proposal for the project?

12

Q.

Right.

13

A.

Sure.

14

Q.

Did you negotiate with them or supervise

15

negotiations?

16

A.

No.

17

Q.

Do you know whether in the course of

18

negotiations there were terms that they -- terms

19

proposed or required on the part -- by the City that

20

they objected to or resisted?

21

A.

Not really.

I think the big term that the

22

City asked in this whole project is the sewer and

23

water project, run the sewer and water out to the

24

Field of Dreams, and I think we informed the developer

25

that we were pretty inflexible to the point that the

639

City was not going to pay for that up front.

Q.

resolved?

A.

Okay.

And how was that ultimately

The Stillmans, the developer, agreed to fund

that at their expense as part of their capital

infusion into the project.

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

10
11
12
13
14

The City could supervise

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.

15

Q.

What was your assessment of the project

16

proposal?

17

A.

Of the proposal on the sewer?

18

Q.

The overall project.

19

A.

The overall project?

Well, I think my

20

opinion of it kind of evolved, I guess, over time.

21

My first blush with it was that, hey, we hit the

22

jackpot, you know.

23

Dyersville could have a project that would put in

24

$35 million worth of taxable property, offer 1,200

25

jobs -- granted, some of them were part time and some

Who in the small town of

640

maybe at minimum wage, but still 1,200 jobs.

that -- that opinion evolved into one that it was a

high-risk, high-reward project for the City from

the --

5
6
7

Q.

Let me stop you there.

I think

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

10

would be on the hook for that entire project, you

11

know, the $2 million or whatever that was to run the

12

water and sewer out there, and I think that's what

13

prompted our objection and as probably a nonnegotiable

14

that we would not do that.

15

elected to incorporate that as part of the project on

16

the terms I just kind of elaborated, then it became

17

kind of a low-risk, high-reward project for the City,

18

and that's kind of my opinion of it.

19

Q.

So when the Stillmans

I note that under Section 15.5 regarding the

20

duty of the -- duties and powers of the mayor, the

21

mayor is not a member of the council and shall not

22

vote as a member of the council; is that right?

23

A.

That's correct.

24

Q.

Did you purport to vote in this matter?

25

A.

No.

641

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

10

standpoint, yes.

11

Q.

We're not talking about health and safety of

12

the citizens of Dyersville with that consideration,

13

are we?

14

A.

Well, I guess that's debatable, but my -- my

15

approach to the thing, first of all, it was a dollars-

16

and-cents approach.

17

the table essentially, then it did become a discussion

18

about the impact of the project on the community and

19

both plus and minus.

20

Q.

Now, after that was taken off

Mr. Heavens, you didn't give that answer

21

when asked by Attorney Henry about this project.

22

indicated low risk, high reward dollars and cents;

23

isn't that true?

24

A.

25

too.

Well, I think that's what I answered you

You

642

MS. HESS: I have no further questions.

MR. HENRY: I have nothing further, Your Honor.

THE COURT:

THE WITNESS:

MR. HENRY: Mr. Heavens is here under subpoena.

Thank you, sir.


Okay.

Thank you.

Is he free to leave?

MS. HESS: Yes.

THE COURT:

MS. HESS: I don't believe I did subpoena that

10

Okay.

witness.

11

MR. HENRY: Pardon?

12

MS. HESS: He's a party to the case.

13
14

I didn't

subpoena him.
MR. HENRY: Yeah, but you did subpoena him.

15

You asked me to have him sign an acceptance.

16

sign an acceptance of service of your subpoena.


That's fine.

He did

17

THE COURT:

Either way.

18

MR. HENRY: He's free to go in any event.

19

THE COURT:

20

MS. HESS: But he is a party to the case.

He can come and go as he chooses.


I

21

imagine if we have to recall him, we have the ability

22

to do that.

23
24
25

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.

643

Mr. Platz.

2
3

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:

THE COURT: Go ahead and have a seat.

8
9

I do.
State

your name for the record, please.


THE WITNESS:

10

Robert Charles Platz.

DIRECT EXAMINATION

11

BY MS. HESS:

12

Q.

Can you please state your address?

13

A.

1120 3rd Street Southwest, Dyersville, Iowa.

14

Q.

Mr. Platz, you are a former City Council

15

member for the City of Dyersville; is that correct?

16

A.

That's correct.

17

Q.

And it's my understanding that you had

18

served approximately twelve years as a City Council

19

member for Dyersville?

20

A.

Yes.

21

Q.

And I believe when you were -- when you were

22

put on the council, you took an oath?

23

A.

Yes.

24

Q.

And in that oath, you swore to uphold the

25

laws of the State of Iowa and the ordinances of the

644

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.

10

Q.

And there was a request that the City do a

11

feasibility study of putting water and sewer out to

12

that location in November of 2011, do you recall that?

13
14
15
16

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?

17

A.

Yes.

18

Q.

Were you present during the proceedings when

19

we showed the video of the November 2011 City Council

20

meeting?

21

A.

No.

22

Q.

Was it your understanding that the City paid

23

approximately $9,600 for that feasibility study?

24

A.

Yes.

25

Q.

Now, at that time, you knew, didn't you,

645

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?

10

A.

Yes.

11

Q.

Now, in December of 2011 you were invited to

12

go to Des Moines to lobby for the sales tax rebate for

13

the developer, do you recall that?

14

A.

Yes.

15

Q.

And you went there to Des Moines along with

16

another City Council member; correct?

17

A.

Yes.

18

Q.

And the mayor?

19

A.

Yes.

20

Q.

And the City Administrator, Mr. Michel?

21

A.

Yes.

22

Q.

And I believe Mike and Denise Stillman and

23
24
25

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.

646

1
2

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.

Q.

Okay.

A.

No.

10

Q.

Dan Willenborg, also a City Council member,

11

It was paid for by somebody,

yes.
You didn't pay for it?

went with you on that trip?

12

A.

Yes.

13

Q.

And you were there in support of the

14

developer, who was at that time trying to get a sales

15

tax rebate legislation passed; is that correct?

16

A.

Correct.

17

Q.

Now, that sales tax rebate was not for the

18

City, was it?

19

A.

No, it was for Stillmans.

20

Q.

And you actually went to Des Moines a second

21

time and sat in on a subcommittee meeting at the

22

capitol where the topic of the Field of Dreams sales

23

tax legislation was discussed, do you recall that?

24

A.

Yes.

25

Q.

That was also prior to the rezoning of the

647

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?

6
7

A.

place, yes.

8
9
10

Q.

And when you say "fall in place," you're

talking about whether or not she got her sales tax


rebate?

11
12

I was in favor if everything would fall in

A.

That's right, yes, that and -- well,

everything has to go with it to get it.

13

Q.

And we learned that that sales tax rebate

14

actually passed prior to the rezoning in early 2012,

15

didn't we?

16
17
18

A.

Yes.

It was passed before the rezoning,

Q.

Members of the public came before the City

yes.

19

Council and requested that the City Council conduct

20

studies prior to the rezoning, didn't they?

21

A.

Yes.

22

Q.

And you're not aware of any study that the

23

City conducted other than the water and sewer

24

feasibility study, are you?

25

A.

Yeah, as far as the City study, it would

648

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

10

know what was -- what was going on, but I -- I just

11

don't remember being there that particular evening.

12
13

Q.

Okay.

But you're not disputing that you

were there?

14

A.

No.

15

Q.

You heard that you were listed in the

16

minutes as being present?

17

A.

Yes.

18

Q.

Do you recall that?

19

A.

Yes, uh-huh.

20

Q.

Now, you didn't disclose at that public

21

hearing that you had been to Des Moines lobbying for

22

the sales tax rebate on behalf of the developer, did

23

you?

24

A.

No.

25

Q.

At no time during any City Council meeting

649

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

10

was drawn, did you?

11

A.

No, I didn't.

12

Q.

And I believe you indicated -- when I asked

13

you during your deposition what you thought the

14

purpose of that 200-foot buffer zone was, you

15

indicated that it worked well at the ethanol plant to

16

get noise away from the general public?

17

A.

That's affirmative.

18

Q.

Was that your understanding as to what the

19

200-foot buffer zone was for?

20

A.

Yes.

21

Q.

Now, you don't have any evidence that a

22

200-foot buffer strip reduces noise, do you?

23

A.

No.

I'm not an engineer.

24

evidence of that.

25

ethanol plant and it did work.

I have no

That's what happened at the

650

Q.

And that's what -- that's what someone told

A.

Yes.

Q.

No one testified at the public hearing that

you?

200 feet would be a distance that would reduce noise,

did they?

A.

No.

Q.

Mr. Platz, that's Exhibit 20.

up there on the screen.

I've got it

If you need to look at it

10

closely in your binder, you can have that.

11

right up there if you can't see.

It's

12

A.

That's fine.

13

Q.

Now, Mr. Platz, prior to the public hearing

14

on August 6, 2012, you were not aware that a 200-foot

15

buffer strip would take away the right of protest of a

16

neighboring landowner, were you?

17
18

MR. HENRY: I object.

It assumes a fact not in

the evidence, and it assumes a fact contrary to law.

19

THE COURT:

Overruled.

20

Do you understand the question?

21

THE WITNESS: Yes.

22

THE COURT:

23

A.

Go ahead and answer.

I think I probably -- yes, I probably knew

24

that just because that's what the situation was at the

25

ethanol plant.

651

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

10

taking away the right of the neighboring landowner to

11

protest?

12

A.

Yes.

13

Q.

So you understood that?

14

A.

Yes.

15

Q.

Mr. Platz, you would agree with me that the

16

Comprehensive Plan for the City of Dyersville in place

17

in 2012 didn't call for commercial development in the

18

area of the Field of Dreams, did it?

19

A.

No, it didn't.

20

Q.

And you would agree with me that during the

21

public hearing, no person spoke in favor of the

22

rezoning, did they? I know you said you don't

23

recall --

24

A.

25

I don't recall, but according to the minutes

that you read, apparently nobody did.

652

Q.

Do you need to review the minutes again

A.

No.

Q.

-- would you agree with me?

A.

I agree.

Q.

Mr. Platz, you, yourself, never made any

or --

independent finding that this rezoning was in

accordance with the Comprehensive Plan, did you?

A.

No.

10

Q.

You never consulted with the City Attorney

11

or the City Administrator to inquire as to whether or

12

not the Field of Dreams rezoning was in accordance

13

with the Comprehensive Plan?

14

A.

No.

We've annexed a lot of property, and it

15

was all volunteer annexation, and we never really went

16

into that Comprehensive Plan.

17

Q.

Okay.

So you would agree with me if you

18

look at the annexation map, that the Field of Dreams

19

property isn't anywhere that was anticipated to be

20

annexed into the City, is it?

21

A.

Not when that map was drawn, no.

22

Q.

Well, if you look at the key to the map even

23

out to 2023, the Field of Dreams property is still not

24

within the area anticipated to be annexed, would you

25

agree with that?

653

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

10

unanimous vote of Planning and Zoning when you made

11

your decision.

Do you recall that?

12

A.

Yes.

13

Q.

And is that what you made your decision on?

14

A.

Yes.

15

Q.

You didn't do your own independent review?

16

A.

No, that's why the City Council has Planning

17

and Zoning.

18

Q.

Okay.

20

A.

Yes.

21

MS. HESS: I have no further questions.

22

THE COURT:

19

So you relied exclusively on that

vote?

23

Cross-examination.
CROSS-EXAMINATION

24

BY MR. HENRY:

25

Q.

Mr. Platz, in your answer to Ms. Hess, your

654

answers to Ms. Hess, you said, "I was in favor of it

if everything would fall in place."

needed to fall in place for you to be in favor of

this?

A.

What -- what

The money, number one, from the state

legislature, the water systems; sewer systems;

anything that goes with annexing property.

has to be taken into consideration before you can give

a positive vote or a negative.

10

Q.

Anything else?

11

A.

No, not really.

That all

Anything else?
I don't think -- I mean,

12

it's just the whole complex of annexation, everything

13

that goes with it.

14

Q.

And what goes with that?

15

A.

You got to have the water and the sewer,

16

that's state code; you got to have dollars, and the

17

people, the Stillmans, had to have dollars or it

18

wouldn't go.

It was their money.

It's their land.

19

Q.

Did it have to be rezoned too?

20

A.

Yes.

21

Q.

Under the Memorandum of Understanding, the

22

Memorandum of Understanding provided for annexation,

23

TIF financing, rezoning, all as preconditions to the

24

development agreement; right?

25

A.

Yes.

655

Q.

As you -- what was your understanding about

whether the Memorandum of Understanding was binding or

nonbinding?

4
5

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 --

10

Q.

The August 6th meeting is the meeting where

11

the rezoning was approved, where the council acted to

12

rezone the property.

13

spoke?

14
15

A.

18

Yes, if there was people there that --

that objected, we did listen to that, yes.

16
17

Yes.

Did you listen to people that

Q.

Do you remember Ms. Hess speaking at that

A.

I remember the situation with a letter, yes.

time?

19

I don't remember the particular letter, but I do

20

remember our City Attorney, yeah.

21
22

Q.

Do you -- did you -- do you feel that you

gave the objectors a fair hearing?

23

A.

24

MR. HENRY: I don't have any other questions.

25

Yes.

656

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.

10

Q.

Yet the annexation passed and so did the

11

rezoning?

12

A.

Yes.

13

Q.

Would you agree with me that if a signed

14

petition is presented to a council and it's rejected,

15

that that wouldn't be fair, would it?

16

A.

That's -- that's -- yes, that's probably

17

true, but the -- timewise, the signed petition and

18

everything wasn't -- wasn't going to be presented to

19

us until within a half an hour before our meeting,

20

which does not give us time to analyze that either.

21

Q.

Sure.

Mr. Platz, if you learned that it

22

would have been proper for a signed petition to be

23

presented at the public hearing, then it wouldn't be

24

fair if it was rejected, would it?

25

A.

Wouldn't be fair if it was rejected?

Yeah.

657

No.

MS. HESS: No further questions.

MR. HENRY: I don't have any other questions.

THE COURT:

MR. HENRY: Mr. Platz is here also under a

subpoena.

Thank you, sir.

May he be released?

MS. HESS: Yes.

THE COURT:

MS. HESS: Dan Willenborg.

Okay.

10
11

DAN WILLENBORG,
having been called as a witness on behalf of

12

Petitioners, having been first duly sworn by the

13

Court, was examined and testified as follows:

14

THE WITNESS:

15

THE COURT:

16
17

I do.
Go ahead and have a seat.

State

your name, please.


THE WITNESS:

18

Daniel John Willenborg.

DIRECT EXAMINATION

19

BY MS. HESS:

20

Q.

What is your address?

21

A.

1047 18th Street Southeast, Dyersville.

22

Q.

Mr. Willenborg, you were on the Dyersville

23

City Council for eight years; is that correct?

24

A.

That is correct.

25

Q.

And you were on the City Council during the

658

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

10

the laws of the State of Iowa and also the ordinances

11

of the City of Dyersville, do you recall that?

12

A.

Yes.

13

Q.

Now, the developer, Mr. and Mrs. Stillman,

14

they presented their plan for development at the Field

15

of Dreams property in late 2011.

Do you recall that?

16

A.

Yes.

17

Q.

And you've --

18

A.

At the council meeting or --

19

Q.

Well, just in general.

20

A.

Yes.

21

Q.

Late 2011?

22

A.

Yes.

23

Q.

Would you agree with that?

24

A.

Yes.

25

Q.

Have you been present during the course of

659

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.

10

A.

Yes.

11

Q.

And the City authorized spending

12

Do you recall that?

approximately $9,600 on that study?

13

A.

Yes.

14

Q.

Knew at that time that the Field of Dreams

15

property was not within the city limits, didn't you?

16

A.

Yes.

17

Q.

You also knew that it would need to be

18

rezoned to commercial for that proposed activity,

19

didn't you?

20

A.

Yes.

21

Q.

You knew that in late November 2011, you

22

were aware of that?

23

A.

Yes.

24

Q.

You also knew at that time that the Field of

25

Dreams area was not within the City's Annexation Plan,

660

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.

10

Q.

And that was in support of the sales tax

11

rebate legislation that the developer was seeking,

12

wasn't it?

13

A.

Yes.

15

Q.

In support of the project?

16

A.

Yes.

17

Q.

And you went out to dinner together?

18

A.

Yes.

19

Q.

And the developer paid for that, didn't she,

14

20
21
22

It was to be there for an extra

person.

that trip?
A.

I can't tell you that.

I don't know.

Somebody paid for it.

23

Q.

You didn't pay for it, did you?

24

A.

That's correct.

25

Q.

You then in December of 2011, you went to an

661

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

9
10

public hearing scheduled on the rezoning, wasn't


there?

11

A.

Yes.

12

Q.

And that was set for August 6, 2012?

13

A.

Yes.

14

Q.

Now, at that public meeting, you didn't

15

disclose to anyone that you went to Des Moines to

16

lobby on behalf of the developer, did you?

17

A.

No.

18

Q.

At no City Council meeting did you disclose

19

that information?

20

A.

No.

21

Q.

Prior to the public hearing, you were in

22

favor of this project being located out at the Field

23

of Dreams, weren't you?

24

A.

Yes.

25

Q.

You didn't disclose to anyone in the City

662

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.

10

Q.

Now, you didn't have any input into how that

11

map was drawn, did you?

12

A.

No.

13

Q.

But you understood that the 200-foot buffer

14

zone did take away the right to protest by at least

15

some of the neighboring landowners, didn't you?

16

A.

Yes.

17

Q.

You didn't learn that -- or did you know

18

that prior to the public hearing on August 6, 2012?

19

A.

Could you repeat the question?

20

Q.

Sure.

Did you know that a 200-foot buffer

21

strip would take away the right of protest?

Did you

22

know that prior to the August 6, 2012, meeting?

23

A.

Yes.

24

Q.

And you were aware of that because that was

25

what was done at the ethanol plant; correct?

663

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

10

the 200-foot buffer strip were prevented from filing a

11

protest, weren't they?

12

A.

Yes.

13

Q.

And that right of protest is provided for

14

both by Iowa law and City of Dyersville ordinances,

15

isn't it?

16
17

MR. HENRY: I object.


law.

18
19

Calls for an opinion of

THE COURT:

Yeah, I'm not sure that he would

know.

20

You can answer if you know that, sir.

21

A.

I don't know.

22

Q.

(BY MS. HESS)

Was it your understanding

23

that at least some law provided for a right of protest

24

of a neighboring landowner within 200 feet?

25

A.

Yes.

664

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

10

Plan that supports the commercial development at the

11

Field of Dreams area, do you?

12

A.

No.

13

Q.

Mr. Willenborg, I believe you told me that

14

your understanding of a Comprehensive Plan was to

15

encompass the City and outlying areas for planning

16

purposes, do you recall that?

17

A.

Yes.

18

Q.

Do you recall prior to the rezoning members

19

of the public coming before the council and requesting

20

that studies be done?

21

A.

Can you repeat that, please?

22

Q.

Sure.

Do you recall members of the public

23

appearing at City Council meetings prior to the

24

rezoning and requesting that studies be done to look

25

into the impact of this development?

665

1
2
3

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.

10

Q.

-- you would agree with me that the Field of

11

Dreams property is outside the boundaries of any

12

proposed Annexation Plan going out 20 years from the

13

date of that?

14

A.

Yes.

15

Q.

So that would be to 2023?

16

A.

Yes.

17

Q.

Mr. Willenborg, do you remember telling me

18

you thought it would be okay to take away the right of

19

protest by a neighboring landowner if it was good

20

economic development?

21

A.

I don't remember saying that.

22

Q.

Do you dispute that you told me that in your

23

deposition?

24

A.

No.

No.

25

MS. HESS: I have no further questions.

666

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.

that's the meeting we're talking about.

were called upon to vote at that meeting, what were

10

Just to -When you

the sources of information on which you relied?

11

A.

On the Planning and Zoning.

12

Q.

Anything else?

13

A.

And just from hearsay from other people out

14

in the community.

15

Q.

Okay.

16

A.

I had a phone call from a gentleman that

Anything else?

17

worked at a local car wash, and he said he was doing

18

kind of an informal survey saying that he was asking

19

all the people what they thought, and they all thought

20

that the Field of Dreams was a good thing, that it

21

would be a good thing.

22

Q.

Anything else?

23

A.

Not that I can --

24

Q.

Did you get a call from Mr. Ameskamp too?

25

A.

No, I did not.

667

Q.

Okay.

A.

Yes.

Q.

Had you attended meetings about this topic

4
5
6

You had a packet at the meeting?

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

10

A.

Yes.

11

Q.

Did you hear from people both for and

12

-- you considered public input?

against the project?

13

A.

Yes.

14

Q.

Did you give them an open ear both ways?

15

A.

Thought I did.

16

Q.

Did you listen to the people that

17

appeared -- Ms. Hess who appeared on August 6th and

18

objected to the proposal?

19

A.

Yes.

20

Q.

Do you think you gave her a fair hearing?

21

A.

Yes.

22

Q.

Do you agree that Dyersville is a community

23

with many different facets?

24

A.

Yes.

25

Q.

Do you agree that one of those facets is

668

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?

10

A.

Yes.

11

Q.

Do you agree that more job opportunities --

12

the need for more job opportunities is a weakness

13

within the community?

14

A.

Yes.

15

Q.

Do you agree that a threat to the community

16

would be loss of the Field of Dreams or other major

17

tourism attraction?

18

A.

Yes.

19

Q.

Do you agree that development of

20

recreational facilities is a goal for the City of

21

Dyersville?

22

A.

Yes.

23

Q.

Do you agree that economic development is a

24
25

goal for the City of Dyersville?


A.

Yes.

669

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

10

Field of Dreams project?

11

A.

No.

12

Q.

Any member of your family have any financial

13

interest in the Field of Dreams project?

14

A.

No.

15

Q.

Either direct or indirect?

16

A.

No.

17

Q.

The red area in the map, is that the area

18

that you understood was going to be rezoned?

19

A.

Yes.

20

Q.

And you intended to do that by your vote?

21

A.

Yes.

22

MR. HENRY: I don't have any further questions.

23

MS. HESS: Thank you, Judge.

24
25

670

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?

10

A.

No.

11

Q.

And I represented to the council during the

12

public hearing that I had a signed petition by

13

neighboring landowners attached to my letter, didn't

14

I?

15

A.

Yes.

16

Q.

And you didn't --

17

A.

That's what you said you had, yes.

18

Q.

You didn't have the benefit of that before

19

you made your vote, did you?

20

A.

No.

21

Q.

I believe when questioned by Attorney Henry,

22

you indicated that -- on information you relied on to

23

make your vote, you considered information that you

24

received outside the public hearing, didn't you?

25

A.

Yes.

671

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

10

asked you some kind of general concepts about a goal

11

of -- some goals that were important for Dyersville.

12

Do you recall that?

13

A.

Yes.

14

Q.

Do you recall at a City Council meeting in

15

February of 2012 one of the local manufacturing places

16

in Dyersville expressing concerns with finding

17

employees to fill manufacturing jobs?

18

A.

Yes, I think I do.

19

Q.

So that was an employer in Dyersville that

20

was already struggling to find jobs to fill for

21

manufacturing?

22

A.

Yes.

23

MS. HESS: I have no further questions.

24

MR. HENRY: Nothing, Your Honor.

25

THE COURT:

Thank you, sir.

672

THE WITNESS:

Thank you.

MS. HESS: Judge, at this time I have some

testimony I'd like to read into evidence.

take a short break?

5
6

THE COURT:

Yeah, that's fine.

Can we

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

10

Olberding.

11

2014.

12

the witness' responses, so, Ms. Hess, when you're

13

ready.

14

That deposition was taken November 24,

Again, Attorney Terry Kurt is going to read

MS. HESS: Thank you, Judge.

15

EXAMINATION

16

BY MS. HESS:

17

Q.

18
19
20

"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.

21

Q.

"What is your address?

22

A.

"2151 332nd Avenue, Dyersville, Iowa 52040.

23

Q.

"Who is your employer?

24

A.

"Bard Materials.

25

Q.

"Any other employment?

673

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.

at Peosta Warehousing.

10

So, I've got four months, three, four months


And then the rest of the year

is at Bard.

11

Q.

12

truck driving --

13

A.

"Yes.

14

Q.

"-- for the majority of your career?

15

A.

"Yes.

16

Q.

"Do you belong to any boards or commissions?

17

A.

"Planning/Zoning.

18

Q.

"Is that the only one?

19

A.

"Yes.

20

Q.

"That's the City of Dyersville?

21

A.

"Yes.

22

Q.

"How long have you been on the City of

23
24
25

"Has your background and employment been in

Dyersville Planning and Zoning Commission?


A.

"Oh, God.

12, 13 years.

I don't know.

It's probably been

I don't know exactly when I went on.

674

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

A.

"Call the meeting to order, ask for the roll

do?

9
10

call votes, kind of ask people to come up and speak if

11

they want and give their name and address and such.

12

Q.

"And they would be speaking on an agenda

14

A.

"Correct.

15

Q.

"So, there's an agenda that goes out to the

13

item?

16

meeting.

17

circulated generally?

18

A.

Is there other information that's

"The -- say, if it's a re-platting, the

19

information on what's re-platted.

20

individuals within -- was it 50 or 100 feet or

21

200 feet, whatever it is of property that's being

22

re-platted or rezoned.

23

meeting.

24

aerial maps or computer-generated maps of the area.

25

Q.

A list of notified

The minutes from the last

I would say that's probably -- sometimes

"Who generally sends out that packet?

675

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.

with that?

Are you familiar

A.

"Yes.

Q.

"And under Powers and Duties, No. 3

addresses zoning.

And if you'll just read along with

10

me, does that state that:

'The commission shall have

11

and exercise all the powers and duties and privileges

12

in establishing the city zoning regulations and other

13

related matters and may from time to time recommend to

14

the council amendments, supplements, changes or

15

modifications all as provided by Chapter 414 of the

16

Code of Iowa.'

Is that what that states?

17

A.

"I would agree, yes.

18

Q.

"So, in your powers and duties, does that

19

state that that's governed by Chapter 414 of the Code

20

of Iowa?

21
22
23

A.

"Well, it says provided by the chapter.

Q.

"All as provided by Chapter 414 of the Code

I --

24

of Iowa.

You can look at it.

I don't mean to --

25

you can look at the whole thing if you want.

I just

676

read No. 3 with regard to zoning.

A.

"And also it says may from time to time

recommend.

of a gray explanation maybe.

5
6

Q.

So, I would consider that to be somewhat

"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."

10
11

THE COURT:

I would let him give his

understanding of it, so I'll overrule it.

12

A.

"Okay.

13

Q.

"Sure.

Repeat the question, please.


Are you required to follow Iowa

14

Code Section 414 on zoning matters as a member of the

15

Planning and Zoning Commission?

16

A.

"I would say yes.

17

Q.

"Now I'm going to hand you a copy of Iowa

18

Code -- I'll represent to you Exhibit 17 is a

19

photocopy of the Iowa Code Section 414 on city zoning.

20

Okay?

21

A.

"Okay.

22

Q.

"And under 414.3, Regulations and

23

Comprehensive Plan, considerations and objectives,

24

notice, adoption and distribution, does it state that

25

the regulations shall be made in accordance with the

677

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

10

the conservation of energy resources and promote

11

reasonable access to solar energy and to facilitate

12

the adequate provision of transportation, water,

13

sewage, schools, parks and other public requirements?

14

A.

"Yes, that's what it says.

15

Q.

"Did I read that correctly?

16

A.

"Yes.

17

Q.

"Let's just take the first sentence or the

18

first part of that here.

19

made in accordance with the Comprehensive Plan.

20

Based on that, do you believe that you're required, in

21

your duties as a Planning and Zoning Commission

22

member, to make your decisions in accordance with the

23

Comprehensive Plan?

24
25

A.

The regulations shall be

"I believe that a Comprehensive Plan is, is

just a very general or none -- I don't know the word

678

I'm looking for.

opinion, the Comprehensive Plan.

at any time.

Q.

It's not set in stone, in my

"Sure.

It can be changed

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?

8
9
10

A.

"I believe that everyone takes that into

consideration.
Q.

It's not always going to be that way.

"When does the Planning and Zoning

11

Commission not have to act in accordance with a

12

Comprehensive Plan?

13

A.

"When do they not have to act in accordance?

14

That's a, that's a tough question to answer in a way.

15

I would -- if it would be something that maybe is

16

really good for the city or the people of the City of

17

Dyersville that wasn't set out 20 years ago and now

18

all of a sudden looks really good.

19

Q.

"So, you believe that in those instances

20

that you don't have to act in accordance with a

21

Comprehensive Plan?

22

A.

"Well, I think everyone takes it into

23

consideration.

24

don't have to act that way.

25

Q.

I'm not saying they have to or they

"But that would be one instance where you

679

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?

10

A.

"I did not.

11

what it was.

12

that or a phone call.

13
14

Q.

The city.

I believe that's

I could be incorrect.

It was either

I'm not sure.

"What was your understanding as to what

would go on at the Work Session?

15

A.

"Information given out to whoever was there.

16

Q.

"By whom?

17

A.

"Mrs. Stillman.

18

Q.

"Had you met Mrs. Stillman prior to the Work

19

Session --

20

A.

"No, I did not.

21

Q.

"-- that Sunday?

22

It might be easier

if I finish my question before you start your answer.

23

A.

"Sorry.

24

Q.

"That's okay.

25

Sorry.

take everything down.

It's difficult for her to


Had you met with Mrs. Stillman

680

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?

10

A.

"No, not that I'm aware of.

11

Q.

"I'm going to hand you Exhibit 4 and ask you

12

taken?

to identify that document.

13
14

A.

"It looks like our minutes taken by Tricia

Q.

"That was for the Work Session for Sunday,

Maiers.

15
16

At the Work Session were minutes

July 8, 2012?

17

A.

"That's when it's dated, so I would say yes.

18

Q.

"Do the minutes state that the meeting was

19

called to order by Denise Stillman at 6:30 p.m.?

20

A.

"That's what it says, yes.

21

Q.

"Did Mrs. Stillman have any authority to

22

call a Planning and Zoning Commission Work Session to

23

order?

24

A.

"I would say no.

25

Q.

"Yet the minutes reflect that that is what

681

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?

10

A.

"Yes, that's correct.

11

Q.

"And does Exhibit 5 reflect revised minutes

12

where the entry stating meeting called to order by

13

Denise Stillman at 6:30 is stricken?

14

A.

"Correct.

15

Q.

"Following the Work Session, did you have

16

any discussions with Mrs. Stillman, Mr. Stillman or

17

any representatives of theirs?

18

A.

"No.

19

Q.

"The following day did you have a Planning

20
21
22
23

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

24

meeting on July 9, 2012?

I will give you the minutes

25

as soon as I find them here.

I'm going to hand you

682

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.

A.

"This is not part of the minutes here, the

first page.

that's it.

Q.

Go ahead and look at them.

Right here it starts.

This is --

Everything except them first two pages.


"Prior to the July 9, 2012, Planning and

10

Zoning Commission meeting, did you review any

11

documentation to prepare for the meeting?

12
13
14

A.

"Everything that was in the packet that the

city sent out.


Q.

"And I think I've actually got that marked

15

as an exhibit.

Exhibit 1, I'll represent, was

16

provided by your attorney and the attorney for

17

Dyersville City Council marked Exhibit 1.

18

first bullet point indicates that documentation for

19

the Planning and Zoning Commission packet for

20

July 9th, 2012 was in there.

21

and review that.

22

A.

"This was not in there.

23

Q.

"The pages are actually numbered.

24

A.

"Okay.

25

Q.

"And maybe you can identify them by page

And the

Do you want to go ahead

683

number.

2
3

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.

8
9
10

Q.

reviewed prior to the meeting, if you can identify it


by page number, that would be helpful.

11
12

"So, just in order to identify what you

A.

"Page 3, I know, was in there; page 4 was in

there, I remember that being in there.

13

Q.

"Is that

--

14

A.

"Page 5, page 6 was in there, page 7, page

15

8, page 9, page 10, page 11.

16

that was in there, page 12, I do not believe was in

17

there.

18

did not approve minutes of the Work Session.

19

I do not believe was in there.

20

14, 15, 16 was not in there, because these are, these

21

are all the minutes from that meeting, so they were

22

not in there, 16 through 19 were not in there.

23

I know it wasn't.

Q.

I don't, I don't think

We did not -- I know we


Page 13

And I do not believe

"So, now, Exhibit 1 you've identified all

24

the documents that you reviewed prior to the Planning

25

and Zoning Commission meeting on July 9, 2012?

684

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?

9
10

"Well, I talked to a few of the neighbors, I

Q.

"When you say 'neighbors,' do you mean your

know.

11
12

A.

neighbors?

13

A.

"Yes, my neighbors.

14

Q.

"And did you get input from them?

15

A.

"I did.

16

Q.

"Do you remember anything specific about

A.

"I would -- specifically, no.

17
18

that?
But

19

generally everyone pretty much told me as long as the

20

city didn't have to pay for the sewer and water to run

21

out there, they were fine with it.

22

Q.

"Did you talk to anyone else?

23

A.

I talked to -- talking to Becky

24
25

Schwendinger.
Q.

"Is she a neighbor?

685

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?

10

A.

"He's my employer.

11

Q.

"And who initiated that conversation?

12

A.

"He did.

13

Q.

"He's your employer?

14

A.

"Yes.

15

Q.

"And this was prior to the meeting?

16

A.

"Correct.

17

Q.

"What did he tell you?

18

A.

"He told me he thought the Field of Dreams

19
20
21

was good, good thing for the City of Dyersville.


Q.

"Did he indicate that he thought you should

vote one way or another?

22

A.

"No, he did not.

23

Q.

"Where did that meeting take place?

24

A.

"His office.

25

Q.

"Did he specifically call you into his

686

office to talk about the meeting?

A.

"That, I do not know.

Q.

"Did you talk about anything else at the

A.

"Probably.

time?

5
6

I do not recall what it would be

or what it was.

Q.

"Did you talk to anyone else?

A.

"My wife.

about it.

10

Q.

I'm sure I talked to my parents

Right now I can't think of anyone else.


"Prior to going into that meeting, did you

11

think that was going to be a difficult decision to

12

make?

13

A.

"Yes, very.

14

Q.

"Why?

15

A.

"Because I knew there was some people

16

against it, and I knew that they were strongly against

17

it.

18

our opinion and then leave.

19

going to be a lot, a lot of opposition.

20
21

Not just, you know, well, let's go up and voice

Q.

You know, I knew it was

"Had you made up your mind prior to the

meeting how you were going to vote?

22

A.

"No.

23

Q.

"Any other information that you reviewed or

24
25

people that you talked to?


A.

"I believe I saw a paper that Mr. Ameskamp

687

put on the windows of the cars at Mass.

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.

5
6

Q.

Whether it

"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

10

there was quite a few letters to the editor and things

11

from -- is it Michigan or wherever there's a complex

12

like this or something?

13

articles in the paper about that, pro, for and

14

against, pros and cons, read all that.

I remember seeing a few

15

Q.

"Did you review anything else?

16

A.

"I do not recall.

17

Q.

"You were present at the meeting?

18

A.

"The Planning and Zoning meeting?

19

Q.

"Yes.

20

A.

"Yes.

21

Q.

"And did you listen to the overview that was

22

I'm sorry.

On July 9, 2012.

provided by Mick Michel?

23

A.

"Yes.

24

Q.

"Do you remember anything about that?

25

A.

"Not specifically, no.

688

1
2
3
4
5
6

Q.

are you required to make a report to the City Council?


A.

Q.

We can either give a positive, a

"In this case what was done?

What was the

conclusion?
A.

property.

Q.

11

"No.

negative or no report at all.

10

"As a Planning and Zoning Commission member,

"Positive report to approve rezoning of such

"And what is the actual report that's sent

to the City Council?


A.

"That, I don't know.

I don't know what

12

they get in their packets.

I couldn't tell you if

13

it's just a sentence that says the city or the

14

Planning and Zoning approved it.

I don't know.

15

Q.

16

report --

17

A.

"No.

18

Q.

"-- to the City Council?

19

A.

"I

20

Q.

"I believe you indicated that in advance of

21

"So, you, yourself, didn't make a written

-- no.

your meeting you did review page 5, 6 and 7?

22

A.

"Correct.

23

Q.

"I'm just going to direct your attention to

24

those pages.

When you reviewed this Resolution 38-12

25

that was the proposal from the city and attached legal

689

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?

8
9
10
11

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?

12

A.

"From which party?

13

Q.

"Well, from any party, from all parties, any

14
15

party that you heard from.


A.

"I know Matt said something about -- or

16

Matt -- or maybe Matt's son said something about it

17

was like blocking you out of, of disproving the

18

proposal.

19

buffer zone for noise and pollution and whatever

20

concerns could come from that.

21

Q.

And then the city said that there was a

"If, in fact, the way the map was drawn took

22

away Mr. Mescher's right to protest the rezoning,

23

would that have concerned you?

24

A.

"Yes.

25

Q.

"Why?

690

1
2
3

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.

you receive a copy of that?

Did

A.

"Yes.

Q.

"Did you have an opportunity to review that

portion of Iowa Code Section 414 prior to the vote?

10

A.

"Yes.

11

Q.

"And what was your understanding as to the

12

actual text of the Iowa code that he was bringing to

13

your attention?

14

A.

"Well, I remember the city attorney, the

15

city attorney at that time being present, and I

16

remember someone asked him for an opinion, and he said

17

that it was, was legal.

18

Q.

"So, did you understand that if a written

19

protest is filed by property owners, that it triggers

20

a mechanism requiring a three-fourths vote of the

21

council to approve the rezoning?

22

"MR. HENRY: I object.

23

fact by counsel that is inaccurate."

24

THE COURT:

25

Q.

That is a statement of

Overruled.

"You can go ahead and answer the question,

691

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

10

members that, that what they were doing by putting in

11

that buffer zone was legal?

12

A.

"Yes.

13

Q.

"Do you know, even though the city attorney

14

expressed an opinion that what was done was legal, if

15

the intent of the buffer zone still took away the

16

right to protest by the property owners, would that

17

have been concerning to you even if it was legal?

18

A.

"Yes.

19

Q.

"Have you had a chance to review your copy

20

of the July 9, 2012, minutes?

21

A.

"Yes.

22

Q.

"Anywhere in the minutes is the

23

Comprehensive Plan, is it reflected in there that the

24

Comprehensive Plan was discussed?

25

your time to review it.

Go ahead and take

I know it's kind of unfair

692

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,

9
10

prior to the City Council voting on the rezoning, do


you know if they reviewed and approved those minutes?

11

A.

"No, I do not know.

12

Q.

"I'm going to hand you what's been marked

13

Exhibit 8 and represent to you that this is a copy of

14

the Planning and Zoning Commission meeting minutes of

15

February 11, 2013.

16

A.

"Okay.

17

Q.

"So, this would have been a meeting that

18

took place after the vote on whether or not to issue a

19

positive report to the council on the rezoning.

20

A.

"Okay.

21

Q.

"It appears, according to the minutes, that

22

you called the meeting to order.

23

A.

"Correct.

24

Q.

"Do you recall that meeting?

25

A.

"If I read the minutes, I may.

693

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.

8
9

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.

10

A.

"Okay.

11

Q.

"Do you recall that discussion at the

12

Planning and Zoning meeting?

13

A.

"No.

14

Q.

"At least as reflected in the minutes the

15

committee was questioning Mr. Michel about the Field

16

of Dreams area, and at that time Mr. Michel advised

17

that the Field of Dreams was not in the 2003

18

annexation but was in the prior Comp Plan.

19

what he told the commission?

20
21
22

A.

Is that

"That's what it says, so I'm going to go off

of that.
Q.

"And it was also noted that the plan had

23

some minor editing issues that should be looked at.

24

Is that also something he provided the commission

25

according to the minutes?

694

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?

10

A.

"Five years, yes, it does.

11

Q.

"And areas shaded in blue are areas to be

12

annexed in five to ten years of that plan?

13

A.

"Yes, it does.

14

Q.

"And the areas identified in yellow to be

15

annexed into the city within 10 to 20 years of the

16

date of the plan?

17

A.

"Yes, it does.

18

Q.

"And I'll represent to you that a blue

19

circle in blue ink out here all the way on the

20

right-hand side of the page is the Field of Dreams

21

property.

22

about where the Field of Dreams property is located?

Is that consistent with what you know

23

A.

"May I ask what else is circled here?

24

Q.

"That is not the Field of Dreams property,

25

but it's identified over here in blue.

If you want to

695

review, if you can see where the roads intersect, that

might help.

3
4

A.
East Road.

5
6

Q.

"I see Lansing Road and I see Dyersville


Okay.

Yes.

"So, the blue circle all the way on the

right --

A.

"Yes.

Q.

"-- is that the Field of Dreams property?

A.

"Yes.

10

Q.

"Are any of those shaded areas as proposed

11

to be annexed into the city, does it reach out as far

12

as the Field of Dreams property?

13

A.

"No, it does not.

14

Q.

"Even 10 to 20 years out from 2003, is that

15

anywhere near the Field of Dreams property?

16
17
18
19

A.

"When you say 'anywhere near,' that's very

Q.

"Well, none of the shaded areas reach out to

broad.

the Field of Dreams property, do they?

20

A.

"No.

21

Q.

"And, in fact, the areas to be annexed

22

within 10 to 20 years are on the opposite end of

23

Dyersville as to the Field of Dreams?

24

A.

"Correct.

25

Q.

"And that's the map that was referenced in

696

the minutes of February 11, 2013; is that also your

understanding?

3
4

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.

10

Q.

"So, at the time the commission was

11

questioning Mr. Michel about where the Field of Dreams

12

property was in relation to the Annexation Plan; is

13

that your understanding by reviewing the minutes?

14

A.

"Yes.

15

Q.

"When you made your vote to give a positive

16

report to the City Council on the rezoning, what did

17

you base that on?

18

A.

"Future jobs and basic growth of the city.

19

Q.

"When you say 'growth of the city,' what do

20

you mean by that?

21

A.

22

"Maybe a hotel or two, more restaurants,

stores on Main Street hopefully.

23

Q.

"Are those economic development-type issues?

24

A.

"I would say yes.

25

Q.

"Anything else?

697

A.

"MS. HESS: I don't have any further questions.

"MR. HENRY: I don't have any questions."

THE COURT:

"That's probably it, in a nutshell.

Okay.

Very good.

Thank you.

Let's take our lunch break.

(A noon recess was taken at this time.)

THE COURT:

Okay.

MS. HESS: Thank you, Judge.

10

Casey.

Please be seated, everyone.

Ms. Hess.

Mr. Casey.

11
12

We call Marc

MARC CASEY,
having been called as a witness on behalf of

13

Petitioners, having been first duly sworn by the

14

Court, was examined and testified as follows:

15

THE WITNESS:

16

THE COURT:

17
18

I do.
Go ahead and have a seat.

And

just start off with your name, please.


THE WITNESS:

19

Marc William Casey.

DIRECT EXAMINATION

20

BY MS. HESS:

21

Q.

Mr. Casey, what is your business address?

22

A.

129 First Avenue East, Dyersville, Iowa.

23

Q.

What is your profession?

24

A.

An attorney.

25

Q.

In what states are you licensed?

698

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

10

there was a two-year period somewhere in there when I

11

was not.

12

Q.

Now, although you indicated you were the

13

City Attorney for a number of years -- and how many

14

years was that?

15

A.

16

36 years.

17

Q.

I didn't add that up.

I would guess it's probably about 35 or

Do you remember telling me in your

18

deposition that you're not totally familiar with the

19

rezoning process?

20

A.

I don't know if I would have said it in

21

those words, but I'm sure you're going to tell me if I

22

did.

23
24
25

Q.

Okay.

Mr. Casey, you gave a deposition in

this case on December 18, 2014.


A.

Yes.

Do you recall that?

699

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?

agreed with me on that.

A.

Yes.

Q.

And then I said:

"With regard to the City

of Dyersville, what is that process?"

was:

involved in this most times."

10

And you

And your answer

"I'm not totally familiar because I'm not not


Does that ring true

with what you remember?

11

A.

Within the proper context, that would be

13

Q.

Do you want to look at your answer?

14

A.

No.

12

true.

I believe what my intention was when I

15

gave that answer would be that I am not involved in

16

the rezoning process from start to finish.

17

be called in most cases to put an ordinance together

18

rezoning once they had gone through the process of

19

going to P&Z, having the hearing, having the ordinance

20

adopted.

21

Q.

Okay.

I would

And in this particular case, it's

22

your understanding we're here on the ordinance that

23

rezoned the Field of Dreams property; is that correct?

24

A.

Yes.

25

Q.

And I believe you told me that you weren't

700

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.

consultations with Mr. Michel on that, but I did not

prepare the map itself.

8
9
10

Q.

Okay.

I may have had

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?

11

A.

That's correct.

12

Q.

And you indicated that that was to provide

13

protection for adjoining landowners, is that your

14

understanding?

15

A.

That's correct.

16

Q.

You also told me that that 200 feet is

17

consistent with state code.

18

me that?

Do you remember telling

19

A.

Yes, I do.

20

Q.

And during your deposition, you couldn't

21

tell me what part of the state code found a 200-foot

22

buffer strip in, could you?

23

A.

No.

24

Q.

And you made the statement to the Dyersville

25

City Council at the public meeting that the 200-foot

701

buffer strip was done pursuant to the law.

recall that?

Do you

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

9
10
11
12
13

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

14

hearing on the rezoning, which was on August 6, 2012.

15

Do you recall that?

16

A.

I was present.

17

Q.

And at that public hearing, or prior to that

18

on that day, I had filed in a written protest signed

19

by neighboring landowners in a letter outlining

20

several pages of concerns.

Do you recall that?

21

A.

Yes.

22

Q.

It was at that meeting that you prevented my

23

letter and signed petition from getting in front of

24

the council.

25

A.

Do you recall that?

I would not phrase it in that manner.

The

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

10

records law.

11

Q.

In what way, Mr. Casey?

12

A.

We had already sent out the council packets

13

that had gone to the press.

What was there could be

14

presented, as it should be, through the course of the

15

public hearing, but to put that with the council's

16

materials right before the meeting I deemed

17

inappropriate at that point in time.

18

Q.

And that was your opinion?

19

A.

Yes, it was.

20

Q.

And this was material submitted, including a

21

signed petition, on behalf of neighboring landowners

22

at a public hearing.

23

A.

Was that your understanding?

It was not presented at the public hearing.

24

It could have been presented at the public hearing,

25

but apparently you chose not to.

703

Q.

Mr. Casey, I'm going to show you a copy of

that letter that you would have seen on August 6,

2012.

you, the black one, Exhibit 57.

If you look at your binder there in front of

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?

10

A.

I have.

11

Q.

And does it indicate on the top left-hand

12

corner that it was received by the City Clerk on

13

August 6, 2012?

14

A.

There is a notation.

There's a hole

15

punched through part of the initial, and it doesn't

16

say City Clerk, but

17
18

MS. HESS: Your Honor, may I approach?

THE COURT:

20

Q.

I can get it for you.


Mr. Casey, is that a better

copy of it up on the screen?


A.

It is.

23

Q.

Okay.

25

Yes.

(BY MS. HESS)

22

24

I'm

going to turn this screen on over here.

19

21

--

Does that indicate in the top left-

hand corner "received 8-6-12"?


A.

Yes, it does.

704

1
2
3
4

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

7
8
9

wouldn't dispute that.


Q.

Who notified you that I filed this letter

with the City Clerk?

10

A.

I don't recall.

11

Q.

Isn't it true that you instructed Tricia

12

Maiers to call me and tell me just prior to the

13

hearing that you would not be allowing my letter to go

14

before the council?

15

A.

I don't recall if I did that or not.

16

Q.

Mr. Casey, I believe you indicated that in

17

your role as City Attorney, you're familiar with the

18

Dyersville City Ordinances on rezoning; is that

19

correct?

20
21

A.

I would be familiar with them, that's

correct.

22

MS. HESS: May I approach, Your Honor?

23

THE COURT:

24

Q.

25

Yes.

(MS. HESS)

Mr. Casey, I'm going to show you

a copy of the Dyersville City Ordinances, and I'm on

705

page 640.

They're also in your binder as Exhibit 34,

I believe.

Is that the provision in the Dyersville City

Ordinances that allows for a written protest to be

filed by neighboring landowners under No. 5?

Could you find page 640 on Exhibit 34?

A.

Yes, that is.

Q.

Okay.

And that's what we're talking about

here today; right?

A.

Yes.

10

Q.

Okay.

Now, I'm going to just have you read

11

along with me.

"If the Commission recommends

12

against, or if a protest against such proposed

13

amendment, supplement, change, modification or repeal

14

is presented in writing to the Clerk, duly signed by

15

the owners of 20 percent or more either of the area of

16

the lots included in such proposed change, or of those

17

immediately adjacent in the rear thereof extending the

18

depth of one lot or not to exceed two hundred

19

(200) feet therefrom"...

20

portion of that correct?

Did I read at least that

21

A.

Yes, you did.

22

Q.

And does that indicate that a written

23

protest is to be filed in writing with the clerk?

24

A.

It indicates it can be, yes.

25

Q.

Well, does it indicate some other method in

706

1
2

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.

file one or a party can certainly file one if they

meet the requirements.

Q.

I'm saying but you can certainly

Mr. Casey, does it say somewhere in here

that written protest gets filed with some entity other

than the clerk?

10

Go ahead and take your time if you

need to.

11

A.

Not in this paragraph, no.

12

Q.

Mr. Casey, are you also familiar with the

13

state statute that has a similar right of protest

14

under 414.5?

15

A.

Yes.

16

MS. HESS: May I approach, Your Honor?

17

THE COURT:

18

Q.

Yes.

(BY MS. HESS)

Mr. Casey, I don't actually

19

have 414.5 as an exhibit, but I do have a copy here.

20

You're familiar with this code section, aren't you?

21

A.

Yes.

22

Q.

I'll give you an opportunity to review it,

23

but if you'll follow along with me, this one actually

24

says, "The protest, if filed, must be filed before or

25

at the public hearing."

Is that what that indicates?

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?

5
6
7

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?

10

A.

It did not meet the requirements.

11

Q.

My question was:

You did not let the signed

12

petition get in front of the council on August 6,

13

2012, did you?

14

A.

It was not an appropriate petition.

15

Q.

It's a yes-or-no answer, Mr. Casey.

16

A.

I did not allow what was presented to me to

17
18
19

be submitted, that's correct.


Q.

Mr. Casey, you were present at the August 6,

2012, meeting; correct?

20

A.

Correct.

21

Q.

You didn't see anyone take the podium and

22

speak in favor of Ordinance 770 to rezone the

23

property, did you?

24

A.

I don't recall.

25

Q.

So if we watched the video, that would

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?

10

A.

No.

11

Q.

Let's start with the public hearing,

12

Mr. Casey.

Were you -- you were aware, weren't you,

13

that the legal description that was used on the public

14

hearing notice that was published in the paper putting

15

the public on notice to rezone this property had the

16

wrong legal description?

17

A.

No.

18

Q.

You weren't aware of that?

19

A.

No.

20

Q.

Well, I've got it up here on the screen.

21

MR. HENRY: I think the witness's question is

What time frame are you speaking about?

22

what time are you asking about the state of his

23

awareness.

24

Q.

(BY MS. HESS)

25

A.

Yes.

Mr. Casey?

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

10

resolution to establish an urban renewal district for

11

the rezoning, wasn't it?

12
13

A.

do with urban renewal area, that I'm aware of.

14
15

Q.

18

And what about with regard to a resolution

to establish a tax increment financing?

16
17

I was not involved with anything having to

A.

I do not believe I was involved with that

Q.

Did you later learn that the same incorrect

either.

19

legal description was used on each and every public

20

notice leading up to the time that you learned the

21

legal description was wrong?

22
23
24
25

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

710

resolution to fix a public hearing notice.

generally familiar with what the error was in the

legal description on the ordinance?

4
5

A.

Are you

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

10

an incorrect, I believe, quarter-quarter section, I

11

believe southeast was used instead of southwest or

12

southwest instead of southeast or something similar to

13

that.

14

Q.

Okay.

So the southwest quarter of the

15

southeast quarter should have actually been the

16

southeast quarter of the southeast quarter, was that

17

your understanding?

18

A.

Again, I'm not sure of the specific ones,

19

but if what you're telling me are the accurate

20

descriptions of those two quarter-quarter sections, I

21

would not disagree with that.

22

over two quarter-quarters.

23

Q.

There was a confusion

And during your deposition we talked about

24

this, and I asked you whether or not a legal

25

description is required on a rezoning, and you told me

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:

Q.

Yes.

(BY MS. HESS)

Mr. Casey, I'm going to hand

you a copy of the Dyersville City Ordinances.

think you've already agreed that you're familiar with

10

them.

11

portion of Chapter 165?

Do you recognize that to be a copy of a

12

A.

Yes.

13

Q.

Okay.

14

And under 165.06, is that the

official map portion of the ordinance?

15

A.

That's the caption, that's correct.

16

Q.

Okay.

Does this ordinance indicate that

17

amendments to the map shall identify the area affected

18

by legal description?

19

A.

Yes.

20

Q.

Would you agree with me that the legal

21

description is required on a rezoning?

22

A.

In the ordinance, yes.

And that's what we

23

had.

We found there was a scrivener's error, and that

24

was corrected.

25

was by the proper description after the amendment was

So, in fact, it is -- the amendment

712

1
2
3

done.
Q.
amendment.

Okay.

Well, let's talk about that

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

9
10

your -- right in front of you up there should be a


book of exhibits.

Can you get to letter T?

11

MS. HESS: May I approach, Your Honor?

12

THE COURT:

13

MS. HESS: Can I see that, Mr. Casey?

14

Q.

(BY MS. HESS)

15

A.

I'm sorry.

16

Q.

That's okay.

17

MS. HESS: I apologize, Judge.

18
19

Yes.

Letter T.

find a -- let's try letter S.


Q.

(BY MS. HESS)

I'm trying to

Okay.

Letter S, does that appear to

20

be the agenda for the Dyersville City Council meeting

21

dated May 6, 2013?

22

A.

Yes, it does.

23

Q.

And on that agenda, was it set for

24
25

consideration of Ordinance 777?


A.

Yes.

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.

7
8
9
10
11
12
13

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

14

public hearing had been held for the rezoning of the

15

property.

16

Q.

So we can agree that there was one hearing

17

on the rezoning of the property, and it was held on

18

August 6, 2012; is that correct?

19
20

A.

To my knowledge, if there was anything else,

I'm not aware of it.

21

MS. HESS: I don't have any further questions.

22

THE COURT:

23

MR. HENRY: Yes, Your Honor.

24
25

Cross-examination?

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.

probably the one rezoning issue in the history of

This is

10

Dyersville that I think everybody knew about.

11

Everyone knew exactly what property was being

12

considered.

13

You would know as an attorney that these can happen

14

frequently.

15

a number to get put out of place.

16

very easy to fix.

17

This was clearly a scrivener's error.

It just takes one letter or something or


They're generally

I had consulted with other city attorneys in

18

larger areas concerning what was the appropriate way

19

to fix this, and the consensus was that this happens

20

frequently, just do an amendatory ordinance, that you

21

do not have to have a public hearing, if there had

22

been one, as long as there was fair and adequate

23

notice to the people that they understood what

24

property was being considered.

25

case, no one could truthfully claim that they thought

And clearly in this

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

10

she read many portions from it, but she didn't -- she

11

chose not to present the letter itself during the

12

public hearing.

13

MR. HENRY: I don't have any other questions.

14

REDIRECT EXAMINATION

15

BY MS. HESS:

16

Q.

Mr. Casey, now, the map that you're talking

17

about, that's not actually published in the paper, is

18

it?

19

A.

I don't know if it was or not.

20

Q.

You don't know what everybody else in the

21
22
23
24
25

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,

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.

6
7

Q.

boundaries were described to them, would they?

8
9

But nobody would have known that unless the

A.

Well, I think people clearly knew what

property was being considered.

10

Q.

Mr. Casey, would you agree with me that if

11

only the legal description was published in the

12

newspaper, that that would be all that people had to

13

rely on in knowing what property was being rezoned?

14

A.

Prior to going to the hearing?

15

Q.

Yes.

16

A.

That would be correct.

17

MS. HESS: I have no further questions.

18

MR. HENRY: I don't have anything, Your Honor.

19

THE COURT:

20

THE WITNESS:

21

MS. HESS: Your Honor, we're going to watch the

Thank you, sir.


Thank you.

22

video of the Ordinance 777 from the City Council

23

meeting.

24
25

THE COURT:
know?

How long is that video, do you

717

MR. HENRY: I'll tell you in a second, Your

Honor.

May 6th, is that the one you want?

cropped version is about six minutes.

The

THE COURT:

(The May 6, 2013, City Council meeting was

6
7
8

Okay.

played at this time.)


MS. HESS: We call Mick Michel to the stand,
Your Honor.

9
10

MICHAEL MICHEL,
having been called as a witness on behalf of

11

Petitioners, having been first duly sworn by the

12

Court, was examined and testified as follows:

13

THE WITNESS:

14

THE COURT:

15
16
17

Yes.
Go ahead and have a seat.

State

your name for the record, please.


THE WITNESS:

Michael Joseph Michel,

M-i-c-h-e-l.

18

DIRECT EXAMINATION

19

BY MS. HESS:

20

Q.

Mr. Michel, who is your employer?

21

A.

City of Dyersville.

22

Q.

How long have you been employed with the

23

City of Dyersville?

24

A.

Approximately over eleven years.

25

Q.

And in what capacity are you employed by the

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.

8
9

Q.

So would you agree with me that you're

required to act in accordance with both the Iowa Code

10

and in accordance with the City of Dyersville

11

ordinances?

12

A.

Correct.

13

Q.

Now, Mr. Michel, when did you first become

14

aware that the Stillmans were planning a commercial

15

development for the Field of Dreams area?

16
17

A.

Sometime in -- right around October or

November of 2011, somewhere right around there.

18

Q.

And you were present during these

19

proceedings when we watched a video from November of

20

2011 where the City was asked to do a feasibility

21

study on sewer and water, do you recall that video?

22
23

Don't recall the video, but I recall being

Q.

Were you present when the video was shown in

there.

24
25

A.

court?

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?

10

A.

Can you repeat the question, please?

11

Q.

Sure.

12

MS. HESS: I'll have the court reporter read it

13

back.

14

(The reporter read the record as requested.)

15

MR. HENRY: I object.

The question is vague

16

with respect to the phrase "heavily involved."

17

some definition on that.

18

THE COURT:

19

Well, I'll let him answer.

Need

Go

ahead.

20

A.

Heavily involved, no.

21

Q.

(BY MS. HESS)

22

A.

I was involved but not heavily involved.

23

Q.

Is it fair to say you sent at least 10,

No, you were not?

24

maybe 15, e-mails back and forth with IIW with regard

25

to them developing the scope of services for that

720

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

10

understanding that the Stillmans were working to

11

secure sales tax rebate legislation in Des Moines?

12

A.

Yes.

13

Q.

And, in fact, you lobbied on their behalf,

14

didn't you?

15

A.

No.

16

Q.

You went to the state capitol in support of

17
18
19

that sales tax rebate, didn't you?


A.

I went to the state capitol but not

necessarily for the sales tax rebate.

20

Q.

Okay.

21

A.

For securing funding for water and sewer for

22
23

For what purpose?

the extension of that project.


Q.

And what specifically did you do in Des

24

Moines to attempt to secure water and sewer for that

25

project?

721

A.

I met with legislators to try to see if they

can put some earmarks into their legislation for water

and sewer extensions.

4
5

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?

10

A.

Not that I'm aware of.

11

Q.

Now, during this same time, you were

12

involved with the developer in establishing a timeline

13

for City procedures for this development to occur,

14

weren't you?

15
16

A.

I was working on some -- some of those

items, that's correct.

17

Q.

Okay.

19

A.

Would it be in this book?

20

Q.

Yes.

18

Let's take a look at Exhibit 48,

please.

Mr. Michel, on page 2 of Exhibit 48,

21

about halfway down the page, is that a copy of an

22

e-mail you sent to Denise Stillman on May 17, 2012?

23

A.

I don't know who I sent it to, but it -- the

24

top line was written by me and I believe it said

25

Jacque.

722

Q.

THE COURT:

THE WITNESS:

MS. HESS: Thank you, Judge.

Okay.
Turn to the second page.
Oh, I'm sorry.
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 --

10

A.

Yes, I see the e-mail.

11

Q.

-- dated May 17, 2012?

12

A.

Yes.

13

Q.

And in that e-mail, you indicate that you're

14

sending the e-mail "to re-emphasize that if you need

15

to have the zoning changed to a commercial designation

16

by August 31, 2012, below is the schedule that we will

17

need to follow."

18

A.

Can I review -- can I read the --

19

Q.

Well, my question was, did I read that

20

Did I read that correctly?

sentence correctly?

21

A.

Where did you see that sentence at?

22

Q.

It's the first paragraph, last sentence.

23

A.

I believe that's what it says.

24

Q.

Okay.

25

And below that you have set out

June 4, 2012, council meeting and you go on to list

723

each and every council meeting all the way through

August 20, 2012, on the next page; correct?

A.

I believe so.

Q.

Okay.

That's what it says.

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?

10
11

A.

Anywheres from once a week to once every

other week or could be longer period of time.

12

Q.

And during those phone discussions, you

13

would discuss development of this timeline, wouldn't

14

you?

15

A.

I believe so, yes.

16

Q.

And from those discussions, there was

17

actually a spread sheet created outlining all the

18

deadlines, wasn't there?

19

A.

A spread sheet or a document?

20

Q.

I'll actually have you turn to Exhibit 49.

21

That might help refresh your recollection.

22

A.

Thank you.

23

Q.

Do you see Exhibit 49 there?

24
25

Thank you.

e-mail to you from Jacque Rahe?


A.

Hold on a second, please.

That was an

724

Q.

Sure.

A.

Thank you.

Q.

Just let me know when you're ready,

Take your time to review it.


Thank you.

Thank you.

Mr. Michel.

A.

Thank you.

Q.

Do you recall the finalization of that

timeline?

A.

10

Okay.

What was your question,

ma'am?

I see that there's an e-mail, but do I

specifically recall it?

11

Q.

Okay.

No.

Well, maybe this will refresh your

12

recollection.

On page 2 of Exhibit 49 -- and this

13

was an e-mail sent to you, wasn't it, from Jacque

14

Rahe?

15

A.

I believe so.

16

Q.

Okay.

And then on the second page of that

17

e-mail, it's All-Star Ballpark Heaven/Field of Dreams

18

Movie Site Complex, Go the Distance Baseball, LLC.

19

you see that there?

20

A.

It appears to be, yes.

21

Q.

And then it indicates down at the bottom,

22

"This is a crucial 17-week work plan to achieve our

23

goal and close by August 31, 2012."

Do

Is that correct?

24

A.

I believe it to be correct.

25

Q.

Okay.

And the developer was, it's my

725

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?

5
6

A.

I just want to

make sure --

7
8

Can you repeat the question?

Q.

Sure.

I'll have the court reporter read it

A.

Thank you.

back.

10

(The reporter read the record as requested.)

11

A.

I don't know.

12

Q.

(BY MS. HESS)

What was your understanding

13

as to why she needed all of these items to be

14

accomplished by August 31, 2012?

15

A.

My understanding is she wanted to close on

16

the property, so she -- she developed this type of

17

timeline.

18

Q.

19
20
21

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.

22

Q.

Sure.

And that would be the rezoning?

23

A.

Yes.

24

Q.

And the annexation?

25

A.

Yes.

726

1
2

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.

9
10

Q.

Okay.

And she was putting pressure on the

City to meet these -- these deadlines, wasn't she?

11

A.

She was -- she had some disagreements with

12

the city in how we were achieving those particular

13

timelines.

14

Q.

Sure.

She was putting some pressure on to

15

make sure that her timelines were met.

16

happy that the City wasn't meeting her timeline, was

17

she?

18
19

A.

There was some correspondence that she was

not pleased with how the City was moving forward.

20
21

She wasn't

Q.

Her criticism was the City wasn't moving

fast enough, wasn't it?

22

A.

Could be.

23

Q.

And, in fact, in Exhibit 49, she calls this

24

a crucial -- "a crucial timeline to meet," doesn't

25

she?

727

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.

10

"this same time."

11

THE COURT:

12

It's not specific as to

Vague.
Do you want to just clarify what

time you're talking about?

13

MS. HESS: Sure.

14

Q.

(BY MS. HESS)

Mr. Michel, in and around

15

March of 2012, you became aware that the neighboring

16

landowners had concerns about the development being

17

located there, didn't you?

18

A.

Do you have a reference point, a specific

19

reference point, or are you talking any time before

20

March or -- I don't understand your question.

21

Q.

I'll try to put a timeframe on it.

From

22

January 1, 2012, through May 1, 2012, did you learn

23

that some of the neighboring landowners had some

24

concerns about the development going at the Field of

25

Dreams property?

728

1
2

A.

some concerns, yes.

3
4

They have approached the City Council on

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?

10

A.

Water runoff issues.

11

Q.

Anything else?

12

A.

Not that I recall.

13

Q.

Based on those concerns, did the city

14

conduct any studies prior to the rezoning about water

15

runoff impact on the neighboring landowners?

16

A.

Prior to rezoning, no.

17

Q.

Mr. Michel, can you turn to Exhibit 50 in

18

the binder?

In your work as City Administrator, did

19

you receive a copy of the attachment to this e-mail,

20

Facts and Figures to Address Neighboring Farmers'

21

Concerns with All-Star Ballpark Heaven and Field of

22

Dreams Preservation Project?

23

A.

It appears to be.

24

Q.

And did you actually have some input in the

25

creation of this attachment?

You can take your time

729

to review it if you need to.

2
3

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.

you were aware of was water and sewer infrastructure.

Now, this you had already somewhat addressed with the

10

feasibility study; is that correct?

11
12

One of the concerns that

A.

The City Council initiated a scope of work

and approved an engineering agreement.

13

Q.

Sure.

15

A.

I believe so, yes.

16

Q.

And the next one is annexation.

14

You were involved in that, weren't

you?

There were

17

some concerns in the community that if property got

18

annexed in, that -- well, people were concerned about

19

being annexed into the property, weren't they?

20

that what this concern kind of summarizes?

21

MR. HENRY: I object.

22

THE COURT:

23

A.

24
25

Is

Calls for speculation.

If he knows, he can answer.

Without reading the details of it, the

document appears to be what the document says.


Q.

(BY MS. HESS)

Okay.

Mr. Michel, go ahead

730

and review that annexation concern there so we can

talk about that.

preparation of this document; right?

A.

document.

Q.

7
8
9

Again, you had input in the

I had input, but I wasn't the creator of the

Okay.

Were you aware of what the concerns

were about annexation?


A.

I was aware of some concerns about

annexation.

10

Q.

What were those?

11

A.

In reference to voluntary annexation or --

12

or involuntary annexation?

13

Q.

Both.

14

A.

Voluntary annexation would be in regards to

15

property taxes and what the property taxes would be

16

for inside the city limits and any hunting concerns

17

for annexing property.

18

regards to property owners who would be -- who would

19

be -- that their property would be involuntarily

20

annexed in to the city limits.

21
22
23

Q.

Okay.

Involuntary would be in

Now, you, yourself, were involved in

negotiating for a voluntary annexation, weren't you?


A.

Negotiating would be a loose definition.

24

Can you give me a definition of what you mean by

25

negotiating?

731

1
2

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?

you turn to Exhibit 50.

Okay.

I'm going to have

Sorry, 55, I believe.

Is

10

Exhibit 55 an e-mail to you from Jacque Rahe attaching

11

a document which is a proposed letter on annexation?

12

A.

It's a proposed letter, that's correct.

13

Q.

Mr. Michel, there was one property owner who

14

was a holdout in the voluntary annexation, wasn't

15

there?

16
17

A.

There was a property owner that had some

concerns about the voluntary annexation agreement.

18

Q.

Okay.

19

A.

No.

20

Q.

Who was it?

21

A.

Don and Becky Lansing.

22

Q.

Okay.

23

And that was John Rahe; correct?

This letter that was drafted is

directed to John and Nicole Rahe, isn't it?

24

A.

It appears to be.

25

Q.

Okay.

And this letter was drafted on your

732

behalf, you were going to present this to John and

Nicole Rahe, weren't you?

3
4

A.

stored it on a file but never sent it out.

5
6

I -- I put it on City letterhead and just

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

10

A.

Not that I'm aware of.

11

Q.

You did talk with them personally then,

12
13
14
15

letter?

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

16

at least once because Mr. Rahe was a holdout on the

17

annexation process; isn't that correct?

18

A.

No.

19

Q.

Mr. Michel, was the annexation process

20

tabled at all?

21

A.

Yes.

22

Q.

For what reason?

23

A.

I believe it was because Don and Becky

24
25

Lansing didn't sign the voluntary annexation.


Q.

And there was some discussion or

733

representation made that the -- that the developer was

doing the annexation negotiation, wasn't there?

3
4
5

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

10

owners who were trying -- that they were annexing the

11

property to.

12

Q.

The City specifically said at a council

13

meeting that the City was not negotiating the

14

annexation, didn't they?

15

A.

Correct.

16

Q.

But, in fact, the City was negotiating it,

17

weren't they?

18

A.

No.

19

Q.

You, yourself, had discussions with Mr. Rahe

20

because he was not in agreement with the annexation;

21

isn't that true?

22

A.

How you frame the question was a general

23

question.

I had some discussions on answering his

24

questions in regards to taxation.

25

Q.

And because he had those concerns, he wasn't

734

ready to sign off on the annexation, was he?

2
3

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.

10

A.

Fifty?

11

Q.

With the concerns of the neighbors attached

A.

No, that was Exhibit 55.

12

to it.

13
14

I can go to 50 if

you want me to.

15

Q.

Yes, please do.

16

A.

Okay.

17

Q.

The next concern that appears on that list

Thank you.

18

that you assisted in preparing says zoning, doesn't

19

it?

20

A.

I believe so.

21

Q.

What was the concern with zoning?

22

A.

It talks about taxation and I believe

23

farming practices.

24

is.

25

Q.

It is what the document says it

Did you ever yourself go to Matt Mescher and

735

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

10

both of their properties between the commercial and

11

their boundary line, didn't you?

12

A.

I'm sorry, I don't understand your question.

13

Q.

You didn't go talk to either one of those

14

property owners about their farming practices and the

15

impact that this rezoning would have on it, did you?

16

A.

That's correct.

17

Q.

Instead, you drew in on the map a 200-foot

18

buffer zone between their properties and the proposed

19

rezoned property, didn't you?

20
21
22
23
24
25

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.
control.

City's input of -- of zoning or subdivision

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.

concerns you were hearing about farming practices?

A.

What was your understanding as to

I'm sorry, could -- when you say "you," are

10

you referring that I prepared the document or are you

11

saying "you" in general?

12

Q.

Both.

13

A.

The document speaks for the farming

14
15

practices.
Q.

Okay.

What was your understanding of what

16

concerns were about people and their ability to do

17

farming practices with this rezoning?

18

A.

There was individuals that approached the

19

City Council in regards to farming practices, and the

20

video speaks for itself, which is dry manure, aerial

21

spraying, and other farming practices.

22
23

Q.

You didn't, on behalf of the City, initiate

any study to look into those concerns, did you?

24

A.

The City Council did not.

25

MS. HESS: Your Honor, at this time would it be

737

a good time to take an afternoon break?

THE COURT:

MS. HESS: Okay.

(A brief recess was taken at this time.)

THE COURT:

We can do that.

Please be seated, everyone.

MS. HESS: Thank you, Judge.

Q.

10

(BY MS. HESS)

Mr. Michel, in your previous

testimony, you indicated that you had phone


conferences with the developer.

Do you recall that?

11

A.

Yes.

12

Q.

And I missed your answer.

13
14

Okay.

Go ahead, Ms. Hess.

Sure.

How often did you

have those phone conferences?


A.

I think I said it was, like, sometimes

15

weekly, other times it could be every other week or

16

upwards of monthly.

17

Q.

There was no real set time.

And I thought you testified that the

18

developer created that timeline.

19

testimony?

Was that your

20

A.

Can you give me a reference point, please?

21

Q.

Sure.

When we were talking about the

22

timeline for getting through the City's processes, I

23

believe you indicated the developer created that

24

timeline.

25

A.

I might be wrong on that.


You could be.

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.

10

MS. HESS: May I approach, Your Honor?

11

THE COURT:

12

Q.

Yes.

(BY MS. HESS)

Mr. Michel, you had an

13

agenda for these phone conferences, didn't you, a

14

written agenda?

15

A.

Could be.

16

MS. HESS: May I approach, Your Honor?

17

THE COURT:

18

Q.

Yes.

Mr. Michel, does this appear to be an

19

All-Star Ballpark Heaven agenda for a May 15, 2012,

20

conference call --

21

A.

It appears to be.

22

Q.

-- with DEDC and City of Dyersville?

23

A.

It appears to be.

24

Q.

And you were the representative from the

25

City of Dyersville that was on this call, weren't you?

739

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.

10

Q.

And you discussed whether it should be by

11

e-mail, telephone or other?

12

A.

It appears to be.

13

Q.

And then Item No. 3 on the agenda, City

14

presents outline for annexation, development agreement

15

and rezoning process, and under that subparagraph A,

16

time duration of each, and letter B, any overlap that

17

can occur.

Did I read that correctly?

18

A.

I believe so.

19

Q.

So those were the issues that were going to

20

be discussed, among other things, at this telephone

21

conference; is that correct?

22

A.

It appears to be.

23

Q.

There was some concern about certain people

24
25

having contact with the developer, wasn't there?


A.

I don't know.

740

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?

8
9

I didn't write this document, so I don't

Q.

Well, you participated in it, in the

know.

10
11

A.

telephone conference?

12

A.

I was apparently party of that conference.

13

Q.

Okay.

And during the conference, you

14

discussed the desired method of communication for each

15

party?

16

A.

Did you use the word "you"?

17

Q.

Yes.

18

A.

I don't know.

19

Q.

At least that's what's set out on the agenda

21

A.

It appears to be.

22

Q.

Mr. Michel, I want to talk with you about

20

23

here?

the City of Dyersville Comprehensive Plan, okay?

24

A.

Sure.

25

Q.

City of Dyersville does have a Comprehensive

741

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.

10

Q.

It's also referenced in the Dyersville City

11

Ordinances?

12
13

A.

Do you have a reference point that I can

Q.

It's somewhere in the Dyersville ordinances.

verify?

14
15

Would you like to get the ordinance out?

16

here.

I've got it

17

A.

It could be if --

18

Q.

Turn to Exhibit 34, please, in your binder.

19

A.

Thank you.

20

Q.

Mr. Michel, do you recognize this to be --

21

Exhibit 34 to be Chapter 165 of the Dyersville City

22

Ordinances?

23

A.

It appears to be.

24

Q.

And under 165.02, does that set forth the

25

purpose of these zoning regulations?

742

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,

10

schools, parks, and other requirements; to conserve

11

the value of buildings and property; and to encourage

12

the most appropriate use of land throughout the City

13

with reasonable consideration, and in accordance with

14

a comprehensive plan."

Did I read that correctly?

15

A.

I believe so.

16

Q.

So does that suggest to you that the purpose

17

of the zoning regulations are to be in accordance with

18

a Comprehensive Plan?

19

A.

It appears to be written as such.

20

Q.

You dispute that for some reason?

21

A.

Not necessarily.

22

Q.

Mr. Michel, you gave a deposition in this

23

case, do you recall that?

24

A.

I gave, I believe, two depositions.

25

Q.

Okay.

With regard to the deposition that

743

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

10

Comprehensive Plan, you said there was an inference to

11

tourism.

12
13
14

A.

Do you recall that testimony?


No, but if that's what I said in my

deposition, that's what I said.


Q.

When you were talking about the 1991

15

Community Builder Plan, did I indicate that it was

16

fair to say there wasn't anything in that Community

17

Builder Plan that addresses commercial use of the

18

property in that area that was proposed to be rezoned,

19

and you said, "not specifically," do you recall that?

20

A.

21

in my deposition.

22

Q.

23

I don't recall it, but if that's what I said

And you indicated that there were inferences

toward tourism and economic development?

24

A.

If that's what I said in my deposition.

25

Q.

Mr. Michel, do you know of any other way

744

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?

10

A.

It could be.

11

Q.

But as you sit here today, you can't point

12

to anything in the Comprehensive Plan that shows that

13

this rezoning is in accordance with it?

14
15

A.

I believe it is in accordance of the

Comprehensive Plan.

16

Q.

Okay.

Well, I have it up there in front of

17

you.

Do you want to show me where it's in accordance

18

with the Comprehensive Plan?

19

A.

Can you give me a reference point, please?

20

Q.

Exhibit 1 through 6 are the Comprehensive

22

A.

And what was your question again?

23

Q.

Sure.

21

Plans.

Can you show me how this proposed

24

rezoning for the Field of Dreams property from A-1 to

25

C-2 is in accordance with the Dyersville Comprehensive

745

Plan?

A.

loss -- Threats:

major tourist attraction.

Q.

Sure.

Page 5 in Exhibit 5, it shows


Loss of Field of Dreams or other

Mr. Michel, stay there on page 5.

You have

identified under threats, loss of Field of Dreams or

other major tourist attraction.

indicated?

A.

That's what it states.

10

Q.

Okay.

Is that what you've

Now, how is this rezoning consistent

11

with that as part of the Comprehensive Plan?

12

Field of Dreams wasn't being lost as a part of this

13

rezoning, was it?

14
15
16
17

MR. HENRY: That's two questions.

The

It's

argumentative.
THE COURT:

Well, go ahead.

You can either

answer either one of them or ask her to clarify it.

18

A.

Could you clarify it?

19

Q.

(BY MS. HESS)

Sure.

As a part of this

20

rezoning, the Field of Dreams was actually being

21

preserved, wasn't it?

22
23
24
25

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

746

Dreams, did it?

A.

That's not true.

Q.

In what way did the commercial development

4
5
6

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

10

City Ordinance Chapter 165.10?

11

A.

Not right offhand, no.

12

MS. HESS: May I approach, Your Honor?

13

THE COURT:

14

Q.

Yes.

(BY MS. HESS)

Mr. Michel, I'm going to

15

show you the Dyersville City Ordinance on

16

Nonconforming Uses.

17

portion of the Dyersville City Ordinances?

18

question was, are you familiar with it?

Are you familiar with this

19

A.

Not specifically, no.

20

Q.

Okay.

My

Well, does it indicate -- and if

21

you'll read along silently, I'll read aloud -- "The

22

lawful use of a building or land existing on the

23

effective date of the ordinance codified in this

24

chapter may be continued, although such use does not

25

conform to the provisions hereof."

Did I read that

747

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

10

rezoning?

11

A.

Can I -- can I review again?

12

Q.

Sure.

13

A.

Thank you.

On the same exhibit, page 7,

14

Goal:

In expanding local economy for industrial,

15

commercial and tourist sections -- sector, excuse me.

16

Q.

I'm sorry, were you done?

17

A.

Yes.

18

Q.

Now, under that objective, there are some

19

strategies for achieving that, aren't there?

20

A.

It appears to be.

21

Q.

And none of those strategies indicate that

22

the City of Dyersville should annex in property and

23

take agricultural land out of production, do they?

24
25

A.
be.

How you phrase the question, that appears to

748

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

10

image in the Midwest.

11

Q.

That's listed as one of the objectives?

12

A.

That's correct.

13

Q.

And this plan actually identifies two

14

strategies to achieve that objective, doesn't it?

15

A.

That's correct.

16

Q.

The first one is continue the strategic

17

planning process in order to determine what

18

Dyersville's image should be; correct?

19

A.

That's correct.

20

Q.

And the other strategy was make a short

21

video detailing what Dyersville has to offer,

22

location, jobs, well-kept homes, et cetera?

23

A.

That's correct.

24

Q.

So those were the two strategies that were

25

identified in this plan to achieve that objective; is

749

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,

10

it says, "Without any changes, Dyersville's three main

11

tourist attractions -- the Field of Dreams, Xavier

12

Basilica and the National Farm Toy Museum -- will

13

continue to attract a fairly constant number of

14

visitors.

15

number of tourists it attracts to the level of

16

advertising and publicity it employs."

17

that correctly?

Dyersville also has some control over the

Did I read

18

A.

It appears to be.

19

Q.

So, in fact, that was identified as an area

20

that would continue to draw and attract fairly

21

constant number of visitors without a rezoning;

22

correct?

23

A.

I'm sorry, I don't understand your question.

24

Q.

The assumptions that you've identified

25

indicate that those three tourist attractions will

750

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.

10
11

Q.

Mr. Michel, can you tell me what page number

you're reading from?

12

A.

I'm sorry.

13

Q.

Okay.

14

identify?

15

A.

16
17

It's on page 2.

And, I'm sorry, what goal did you

Expanding local economy for the industrial,

commercial and tourism sectors.


Q.

Okay.

Now, when you identify goals, Goal

18

Specific Strategies in these comprehensive plans, they

19

actually have objectives underneath them to achieve

20

these goals, don't they?

21
22
23

A.

It appears to be.

There's objectives

underneath the goals.


Q.

So not only are there objectives, but

24

actions suggested underneath, and none of these

25

strategies or actions include annexing in property and

751

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

5
6

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

10

businesses and fill vacant storefronts, isn't it?

11

A.

That's correct.

12

Q.

And then on the next page, Objective C,

13

under that same goal, Allow for continued growth and

14

development near U.S. 20 and along 136.

15

A.

That's what it states.

16

Q.

And encourage businesses, that require a

17

large amount of space and parking, to develop along

18

the highway.

19

A.

That's what it says.

20

Q.

And then, "Ensure that adequate land and

21

infrastructure are available to develop along the

22

highway."

23

A.

24
25

Did I read that correctly?


That's what it says.

Page 11, Objective D.

Solidify Dyersville's image in the Midwest.


Q.

And there are two strategies identified

752

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:

well-kept home, et cetera."

that, haven't we?

A.

10

Location, jobs,
We've already covered

It may have been in 1991, but it's in the

1997 plan.

11

Q.

Okay.

Anything else?

12

A.

Objective F, "Become more aggressive in

13

meeting the needs of existing businesses and

14

industry."

15
16

Q.

And again, there are strategies identified

under that, aren't there?

17

A.

Yes.

18

Q.

And none of those strategies talk about

19

expanding out to the Field of Dreams location, do

20

they?

21

A.

Can you repeat the question?

22

Q.

Sure.

None of these strategies listed

23

under that objective contain language that would --

24

that indicates that the City of Dyersville should

25

expand out to the Field of Dreams area, does it?

753

A.

I don't know.

Q.

Can you identify anything else in the

Comprehensive Plan that you believe to be consistent

with this rezoning?

5
6
7

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

10

and take your time and let me know if there are any

11

other things in the Comprehensive Plan you believe

12

make this rezoning in accordance with or consistent

13

with it.

14

A.

From what I can see --

15

MR. HENRY: I object to the -- the instruction

16

of Counsel to the witness, and I object to the

17

statement of Counsel to the witness that this is your

18

opportunity.

19

is not an opportunity.

20

Plaintiffs' attorney is to ask questions.

21

witness has indicated he's answered the question as

22

far as he can at this point.

23

opportunity and this is not a dare contest.

24
25

It is not -- that's not proper.

THE COURT:

This

This is an occasion when the


The

It's not a matter of

Well, if he wants more time to look

at it, I'll give him more time.

If he -- if he

754

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?

10

A.

Yes.

11

Q.

And he identified for the Court that the

12

future land use maps don't show this parcel of

13

property as something that was anticipated or in the

14

Comprehensive Plan.

Were you present for that?

15

A.

I was present.

16

Q.

Now, the Dubuque County Comprehensive Plan

17

wouldn't apply to the City of Dyersville, would it?

18

A.

That's correct.

19

Q.

City of Dyersville never adopted a Dubuque

20

County plan, did they?

21

A.

That's correct.

22

Q.

And everything that you've pointed out to

23

the Court, those are all inferences to tourism, aren't

24

they?

25

A.

I don't understand your question.

755

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.

9
10

I was

just turning your attention to that issue.


Mr. Michel, do you remember telling the

11

Dyersville Planning and Zoning Commission on July 9,

12

2012, do you remember telling them about the 200-foot

13

buffer strip?

14

A.

Do I remember specifically?

15

Q.

Yes.

16

A.

No, but there's an audio tape that was

17
18

played here.
Q.

And do you recall that you told them that it

19

worked very effectively when there was a lot of

20

disagreement with the ethanol plant?

21

A.

Could be.

22

Q.

And you used that 200-foot buffer strip at

23

the ethanol plant to preserve or protect agricultural

24

interest, didn't you?

25

A.

Is that what I said?

I don't know.

756

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.

MS. HESS: May I approach, Your Honor?

THE COURT:

Q.

If that's what I said, yes.

Yes.

(BY MS. HESS)

Mr. Michel, you were the

City Administrator when the ethanol plant was rezoned;

10

is that correct?

11

A.

I believe so.

12

Q.

And you implemented a 200-foot buffer

13

strip -- Shelly, do you want to get the lights?

14

don't know if it's easier for you to see on the

15

screen.

16

also -- it's 44, and I've also got it here for the

17

Court's reference.

18
19

And I

You've got a map in your binder, and I've

Now, the ethanol plant is out on the west side


of the City of Dyersville; is that correct?

20

A.

Yes.

21

Q.

And on Exhibit 44, we can see here the

22

200-foot buffer strip around the front part of the

23

ethanol plant where that was rezoned.

24

that?

25

A.

Can you see

I see an A-1 zoning on north end of the

757

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

6
7
8

ordinance for the ethanol plant?


A.

The City Attorney had prepared the zoning

ordinance.

Q.

You were involved in that in some way?

10

A.

Possibly, yes.

11

Q.

Okay.

You would agree with me that it's a

12

similar 200-foot buffer strip that was used on the

13

Field of Dreams rezoning?

14

A.

Similar, yes.

15

Q.

Now, you represented at the City Council

16

meeting that that was to protect agricultural

17

practices at the ethanol plant.

Do you recall that?

18

A.

If that's what I said, that's what I said.

19

Q.

Okay.

Now, these properties aren't actually

20

agricultural on the other side of that 200-foot buffer

21

strip, are they?

22

A.

What was your question?

23

Q.

The properties on the other side of that

24
25

200-foot buffer strip aren't agricultural, are they?


A.

They're residential and agricultural.

758

1
2

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.

Q.

Well, here, I'll show you.

MS. HESS: May I approach, Your Honor?

THE COURT:

10

Q.

I don't know.

Yes.

The first property there, 3297 Vine Road,

11

would you agree with me that's a commercial

12

designation?

13
14
15

A.

Taxwise it's listed as commercial

designation.
Q.

Okay.

Do you have some reason to dispute

16

that that's the classification that's listed for that

17

property?

18

A.

No, that's what's listed.

19

Q.

There's no agricultural activity going on at

20

that property, is there?

21

A.

I don't know.

22

Q.

Well, if there would be, it would be in

23

violation of the zoning classification of commercial?

24

A.

No, not necessarily.

25

Q.

Do you believe that there are agricultural

759

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?

look at the map, feel free to do that.

agree with me --

A.

It appears to be.

Q.

-- that's also a commercial designation,

10

isn't it?

11

A.

12

Would you

I wouldn't use the word "commercial"

designation.

13
14

If you need to get down and

Q.

Is that what's listed on the classification

for the property record in front of you?

15

A.

For tax purposes.

16

Q.

Okay.

And then the next property is 3295

17

Vine Road, and that's the next parcel on the buffer

18

strip, would you agree with me?

19

A.

I don't know.

20

Q.

You can go ahead and step down.

21

I can't see the -I want to

be fair to you.

22

A.

Thank you.

23

Q.

3295.

24

A.

So it's this one right here you're talking

25

about?

What was the number again?

760

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?

10

A.

It appears to be.

11

Q.

Now, the next one down the line on your

12

buffer strip that's supposed to protect for

13

agricultural practices is 3291 Vine Road.

14

that?

Do you see

15

A.

I see that.

16

Q.

And is that a residential classification?

17

A.

It appears to be.

18

Q.

Mr. Michel, the next one down the line, 3281

19

Vine Road --

20

A.

Well, for tax purposes.

21

Q.

Sure.

22
23
24
25

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.

761

1
2

A.

Q.

Okay.

And 3273 Vine Road, does that also

have a residential classification?

5
6

It -- for tax purposes, it lists it

as residential.

3
4

Okay.

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?

last parcel of property around the bend there.

10
11

A.

It's not the full document.

The

Do you have

the full document?

12

Q.

Based on this, does that appear to be a

13

A.

Can I see the last one?

14

Q.

Sure.

15

A.

Okay.

16

Q.

So the last parcel on the 200-foot addition

What was your question again, ma'am?

17

or the 200-foot buffer strip on the ethanol plant

18

appears to be agricultural classification; is that

19

correct?

20
21

A.

--

It lists it as tax classification for

agricultural.

22

Q.

And that was the only parcel along that

23

ethanol plant that was classified agricultural, wasn't

24

it?

25

A.

No, I disagree with that.

For tax

762

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?

10

Q.

44.

11

A.

And what was your question?

12

Q.

Does there appear to be an abandoned

13

railroad bed just north of those properties there?

14

A.

I don't know what you mean by a railroad

16

Q.

Are you familiar with the ethanol plant

17

property at all?

18

A.

15

bed.

I'm familiar with the ethanol plant

19

property, but I don't know what you mean by a railroad

20

bed.

21
22

I don't know what that means.


Q.

Is there also a creek back out behind there,

behind those properties?

23

A.

On the north end, I believe so.

24

Q.

Okay.

25

Mr. Michel, would you agree with me

that on the opposite side of where the buffer zone is

763

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.

9
10

Q.

Yet, there's no buffer zone on the south

side of the ethanol plant, is there?

11

A.

Doesn't appear to be.

12

Q.

There was a lot of controversy surrounding

13

the proposed rezoning for the ethanol plant, wasn't

14

there?

15

A.

Could be.

16

Q.

And you indicated that the 200-foot buffer

17

strip worked well when there was a lot of disagreement

18

with the ethanol plant?

19

A.

If that's what I said.

20

Q.

And again, at the ethanol plant, that

21

200-foot buffer strip took away the right of protest

22

of those neighboring landowners, didn't it?

23

A.

Can you repeat the question?

24

Q.

Sure.

25

At the time of the rezoning of the

ethanol plant, that 200-foot buffer strip took away

764

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?

8
9
10
11

A.

I don't understand your question.

You keep

using the word "you."


Q.

Mr. Michel, you drew this map; is that

correct?

12

A.

Which map?

13

Q.

The proposed rezoning map for Ordinance 770.

14

A.

Do you know what exhibit that is or -- for a

15

reference point?

16

Q.

17

Sure.

Sure.

Mr. Michel, if you look in

the white binder there, Exhibit YY.

18

A.

That's this one?

19

Q.

The white binder, yep.

20

A.

You said YY?

21

Q.

Yes.

22

A.

And your question?

23

Q.

You were at least involved in drafting some

24
25

of the Ordinance 770; is that correct?


A.

No.

765

1
2

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

10

opposition to the proposed rezoning of the Field of

11

Dreams property before you created that map, didn't

12

you?

13

A.

Define opposition.

14

Q.

Well, I think you indicated to me, or at

15

least said during the Planning and Zoning Commission,

16

you referred to the opposition as the neighboring

17

landowners, the people that were opposed to this

18

project?

19
20
21

A.

If that's what I said to the Planning and

Zoning Commission.
Q.

And you were aware that there was a group of

22

people that were opposed to the rezoning before you

23

drew the map, weren't you?

24
25

A.

There was a group of people that actually

had issues with zoning in regards to farming practices

766

1
2
3

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.

question.

10

Q.

Can you

-- I don't understand your

Can you repeat it, please?


Sure.

Before you drafted the map that was

11

attached to Ordinance 770, you were aware that there

12

was a group of neighboring landowners that was opposed

13

to the rezoning, weren't you?

14
15
16
17
18
19
20
21

A.

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?

22

A.

23

rezoning.

24

Q.

25

There was people who had issues with the

Matt Mescher did state he was opposed to the

And you didn't ask Mr. Mescher if he wanted

a 200-foot buffer zone, did you?

767

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

10

use the same 200-foot buffer zone on the Field of

11

Dreams rezoning; would you agree with that?

12
13
14

MR. HENRY: I object.


pejorative.

It's argumentative.

It's

It's not a question, it's an argument.

THE COURT:

Well, the only part that's

15

argumentative is to say "hatched a plan," but other

16

than that, I'm going to let the question go.

17

Go ahead.

You can answer it.

18

A.

I'm sorry, I don't understand your question.

19

Q.

(BY MS. HESS)

Well, it worked so well to

20

quiet the opposition at the ethanol plant that you

21

used the same method at the Field of Dreams proposed

22

rezoning, didn't you?

23
24
25

A.

I don't know what you mean by "quiet the

opposition."
Q.

Well, that was the effect of it; it took

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.

10

Q.

Mr. Michel, do you recall Mr. Mescher

11

appearing at the July 9, 2012, Planning and Zoning

12

Commission and handing out a copy of Iowa Code Section

13

414.5?

14

A.

I think he did.

15

Q.

And he indicated -- and he indicated that he

16

believed that that removed their ability to protest,

17

do you recall that?

18

A.

He may have.

19

Q.

And you confirmed that it removed Matt

20

Mescher's ability to protest, didn't you?

21

A.

If that's what I said.

22

Q.

Do you dispute that that's what you said?

23

A.

No.

24

Q.

Mr. Michel, there was a Memorandum of

25

Understanding entered into between the City of

769

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?

have -- that works.

10
11

Q.

I have a reflection in the back and I


Thank you.

Do you have the Memorandum of Understanding

in front of you, Mr. Michel?

12

A.

Yes.

13

Q.

Do you recall when the City and the

14

developer entered into that agreement?

15

A.

I believe it was at a council meeting.

16

Q.

And that was dated June 18, 2012; is that

17

correct?

18

A.

Yes.

19

Q.

And at that time the City was agreeing to

20

use its best efforts to rezone this property, the

21

Field of Dreams property; is that your understanding?

22

A.

That's what the document says.

23

Q.

And you were present at the City Council

24

meeting when that was signed and agreed to; is that

25

correct?

770

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

10

the document was signed.

11
12

-- when

Q.

Well, you don't dispute that it's been

signed though, do you?

13

A.

No.

14

Q.

Mr. Michel, you were aware that there was at

15

least one City Council member that was not in favor of

16

this rezoning at the time you drew that map, weren't

17

you?

18

attached to Ordinance 770.

And when I say map, I'm referring to the one

19

A.

Oh, I don't know.

20

Q.

You didn't know that Molly Evers was making

21

statements during City Council meetings that she had

22

questions and concerns with regard to this rezoning?

23

A.

Which council meeting?

24

Q.

Any council meeting where the Field of

25

Dreams property was discussed.

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?

5
6
7

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

10

addition to farming practices, that 200-foot strip

11

would address a concern about children playing

12

baseball up to the fence line.

13

buffer strip prevent children from playing baseball up

14

to a fence line?

15

A.

Is that what I said?

16

Q.

Yes.

17

How would a 200-foot

If you want to see a copy of the

transcript, I can certainly bring it up.

18

A.

Could I, please?

19

Q.

Sure.

20

MS. HESS: I'm on page 3.

21

Q.

If you just want to read silently, I can

22

read it aloud.

"What we believe the 200-foot strip

23

will accomplish, a reasonable test to make sure that

24

the farming practices can continue within that area.

25

There was a lot of issues of dry manure spread, liquid

772

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?

10
11
12
13

A.

I just identified the issues of the reason

Q.

So you would agree with me that a 200-foot

why.

buffer strip wouldn't prevent that?

14

A.

I don't necessarily disagree with you.

15

Q.

And a 200-foot buffer strip wouldn't do

16

anything to ameliorate any issues of manure spreading,

17

would it?

18

A.

I -- define ameliorating.

19

Q.

To solve, to resolve some problems within a

20

200-foot from manure spreading.

21

A.

I believe it would.

22

Q.

In what way?

23

A.

DNR regulations state with the 200-foot

24
25

strip, and that was the reason why we added that.


Q.

Now, DNR would be the one that would enforce

773

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?

10

A.

Not specifically, no.

11

Q.

Now, if you stated that one of the reasons

12

for it was to address a concern that somebody might

13

have had about property values, do you dispute that

14

you said that?

15

A.

I don't dispute.

16

Q.

How would a 200-foot buffer strip protect

17
18
19
20
21

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?

22

A.

I don't understand your question.

23

Q.

How would a 200-foot buffer strip stop the

24
25

developer from filing a nuisance suit?


A.

It doesn't prevent them from filing a

774

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

10

buffer strip, couldn't they?

11

A.

Whatever's identified in that A-1 usage.

12

Q.

Mr. Michel, when you addressed the Planning

13

and Zoning Commission on July 9, 2012, you made no

14

mention of the 2003 Annexation Plan, did you?

15

A.

I don't know.

16

Q.

Mr. Michel, you would agree with me that the

17

2003 Annexation Plan does not propose or anticipate

18

any annexation of property out to the Field of Dreams,

19

does it?

20

A.

Do you have a reference point, please?

21

Q.

Sure.

The Annexation Plan map identified

22

in this exhibit doesn't show any annexation by the

23

City of Dyersville out to the Field of Dreams property

24

for more than 20 years, does it?

25

A.

According to that map, that's correct.

775

1
2

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:

MR. HENRY: Thanks.

THE WITNESS: Can I just take, like, a

10

Cross-examination.

three-minute break?

11

THE COURT:

12

MR. HENRY: Okay.

13

THE WITNESS:

14

THE COURT:

15

THE WITNESS:

16

THE COURT:

17

THE WITNESS:

18

(A brief recess was taken at this time.)

19

THE COURT:

20

MR. HENRY: Thank you, Your Honor.

21

Yeah.

I've been up here over an hour.


We can take a short break.
Just three minutes.
No problem.
Thank you.

Okay.

Cross-examination.

CROSS-EXAMINATION

22

BY MR. HENRY:

23

Q.

24

A-1 buffer zone?

25

A.

Would commercial use be permitted within the

No.

776

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.

10

Q.

And then a set of railroad tracks north of

11

the road?

12

A.

Yes.

13

Q.

And those preexisted the -- the construction

14

of the ethanol plant?

15

A.

Road, yes.

16

Q.

Okay.

17

Railroad, no.

And then there's no -- no commercial

use south of the road; is that correct?

18

A.

That's correct.

19

Q.

Take a look at Exhibit 50, and specifically

20

the facts and figures page.

Are you there?

21

A.

Yes.

22

Q.

Read the bottom line, the bottom paragraph,

23
24
25

the bottom two lines on that page.


A.

"Prepared by the Economic Development

Corporation with guidance from Dubuque County Zoning

777

Administrator, Dyersville City Administrator,

Department of Natural Resources and Department of

Agriculture."

4
5

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.

introduction.

And specifically the

It's on page 2, numeral 2 not the

10

preceding -- you know, the Roman numeral pages.

11

Numeral 2.

You got it?

12

A.

Yes.

13

Q.

Does it read beginning in the middle

14

toward -- about two-thirds of the way down from the

15

first paragraph:

16

Dyersville's personality is tourism.

17

for 'Field of Dreams,' the Basilica of St. Francis

18

Xavier, the Dyer House and Doll Museum, the new

19

National Farm Toy Museum, as well as the renewed

20

tourist industry in Dubuque all contribute to make

21

Dyersville a 'must see' for thousands of tourists each

22

year"?

23
24
25

A.

"The most recent facet of

I'm not seeing that.

The movie site

On Roman numeral

number II?
Q.

No, Arabic numeral number 2, Introduction.

778

Are you there?

A.

Yes.

Q.

Sorry.

"The most recent facet of

Dyersville's personality is tourism.

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

10

year."

The movie site

Accurate?

11

A.

Yes.

12

Q.

"Dyersville would like to keep all of these

13

different facets alive.

The community is attempting

14

to maintain a balance between all of its elements and

15

not sacrifice one for another.

16

important and each has ample room to grow and flourish

17

within the community."

Each of them are

Accurate?

18

A.

Yes.

19

Q.

"In the Fall of 1991, the 'Community Builder

20

Planning Committee' and the citizens of Dyersville

21

scrutinized the community to determine what kind of

22

community Dyersville should be in the future.

23

main concern that surfaced was that Dyersville must

24

become much more aggressive and in guiding and

25

encouraging its own growth."

Right?

The

779

A.

Correct.

Q.

Directing your attention to page 7, first

goal, "an expanding local economy in the industrial,

commercial and tourist sectors."

right?

Did I read that

A.

Yes.

Q.

And under Strategy 3, "target businesses

that would complement Dyersville's existing

businesses."

Did I read that right?

10

A.

Yes.

11

Q.

Look at page 8.

"Objective F) Become more

12

aggressive in meeting the needs of existing businesses

13

and industry."

Did I read that right?

14

A.

Yes.

15

Q.

And "Strategy 1) Regularly survey businesses

16

to determine" -- where -- that's not right.

17

MR. HENRY: Sorry, Your Honor.

18

Q.

(BY MR. HENRY)

Page 10, the goal is

19

improved community services to meet the needs of

20

the -- I'm sorry.

21

facilities."

22

facilities.

23

partnership whenever possible."

24

right?

25

A.

"Goal:

"Adequate public capital


Adequate public capital

Strategy 3) Encourage a public-private

Yes.

Did I read that

780

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.

MS. HESS: I have no further questions.

10

MR. HENRY: I don't have any questions.

11

THE COURT:

12

Okay.

13

MS. HESS: Yes.

14

THE COURT:

15

Correct.

Okay.

Thank you, sir.

Should we quit for the day?

All right.

Let's go off the

record.

16

(A discussion was held off the record.)

17

(The trial was adjourned at 4:22 p.m. on

18
19
20
21
22
23
24
25

February 19, 2015.)