RAAC vs. City of Dyersville Trial Testimony 2-19-15

583
1
2
IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY
18
)
)
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
19
BEFORE:
20
REPORTER:
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
21
22
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
23
24
25
TRANSCRIPT APPEALED: August 20, 2015

TRANSCRIPT ORDERED: August 24, 2015
TRANSCRIPT DELIVERED: September 28, 2015
584
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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.
585
1
2
3
4
5
6
7
8
9
10
11
12
13
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
DAN WILLENBORG
DEPOSITION OF DANIEL OLBERDING................ 642
MARC CASEY
MICHAEL (MICK) MICHEL
14
15
16
17
18
19
20
21
22
23
24
25
Last Page of Volume IV.................... 780

Certificate of Shorthand Reporter.........1121
586
1
2
(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.
9
10
11
12
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
13
finished listening to the entirety of the audio from
14
the July 9, 2012, Planning and Zoning Commission
15
meeting.
16
Are we ready with another witness?
17
MS. HESS: Yes, Judge.
18
Can I do some setup
prior to starting?
19
THE COURT:
20
MS. HESS: We call James Heavens to the stand.
21
Yes.
JAMES HEAVENS,
22
having been called as a witness on behalf of the
23
Petitioners, having been first duly sworn by the
24
Court, was examined and testified as follows:
25
THE WITNESS:
I do.
587
1
2
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?
10
A.
US Feeds.
11
Q.
What are you employed as?
12
A.
I'm a cattle nutritionist.
13
Q.
Now, it's my understanding that you are the
14
former mayor of the City of Dyersville; is that
15
correct?
16
A.
That is correct.
17
Q.
And I believe you told me you had two
18
19
20
five-year terms; is that correct?

A.
Two five-year terms -- or two -- five
two-year terms.
21
Q.
Five two-year terms.
22
A.
Yes.
23
Q.
So what years did you serve as mayor of City
24
25
of Dyersville?
A.
I was elected in 2003, took office
588
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.
10
A.
Do you recall that?
I don't know if they asked us to do that or
11
we volunteered to do that.
I think that was part of
12
our contribution to the project to initiate that
13
study.
14
Q.
That study cost approximately $9,600?
15
A.
I believe that's correct.
16
Q.
Now, were you present -- I know you've been
17
here during some of these proceedings.
Were you
18
present when we watched the video of the November 21,
19
2011, City Council meeting?
20
A.
No.
21
Q.
Now, Mr. Heavens, as far as you know prior
22
to the rezoning, that was the only study that the City
23
paid for, is that your recollection?
24
A.
That is my recollection.
25
Q.
Do you recall other members of the public
589
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.
10
Q.
We did have a conservation
Mr. Heavens, I'm going to stop you for a
11
second.
I guess I should have asked a better
12
question.
13
A.
Okay.
14
Q.
Prior to the rezoning, the City didn't pay
15
for any studies to be done that were requested by the
16
public, did they?
17
A.
18
recollection, no.
19
Q.
They didn't do a stormwater runoff --
20
A.
No.
21
Q.
-- study prior to the rezoning, did they?
22
A.
No.
23
Q.
Mr. Heavens, in November of 2011 when there
The City did not pay for any, to my
24
were preliminary discussions about a feasibility
25
study, you knew that the Field of Dreams property was
590
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.
10
Q.
You actually made two trips to Des Moines,
11
didn't you?
12
A.
Yes.
13
Q.
And the first trip that you took was
14
15
16
17
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
18
have known in December of 2011 at the time they went
19
on the bus trip that this property was going to have
20
to get annexed into the City?
21
A.
Probably, yes.
22
Q.
And that it was going to have to get
23
rezoned?
24
A.
Yes.
25
Q.
Now, you took those two City Council members
591
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.
10
Mr. Heavens, if you could follow along while I

Do you recognize this e-mail you sent to
Jacque Rahe?
11
A.
Yes.
12
Q.
And the re line is "Meeting with Governor
13
Branstad on Monday, December 19th"?
14
A.
Yes.
15
Q.
And that's 2011; correct?
16
A.
I would assume so, yes.
17
Q.
And would you agree with me that your e-mail
18
to her said, "I agree, we don't want to put Denise" --
19
and when you say "Denise," you mean Denise Stillman,
20
the developer?
21
A.
Yes.
22
Q.
In an awkward -- "in any awkward position
23
with the Governor.
When we discussed going to Des
24
Moines with Bob and Dan" -- and when you said "Bob and
25
Dan," you meant Bob Platz and Dan Willenborg?
592
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
10
Monday and see if they still want to make the trip
11
with David Vaudt at 1:00.
12
offer support if necessary and I want to keep them in
13
the loop as best we can as there will come a time when
14
we will need their yes votes on the project.
15
it would be worth taking them to supper with us."
16
Did I read that correctly?
They would be on site to
I think
17
A.
Yes, you did.
18
Q.
So you needed those two councilmen's yes
19
votes on this project, didn't you?
20
A.
In a general sense, yes.
21
Q.
Now, you actually took a second trip -- you
22
took a second trip to Des Moines; is that correct?
23
A.
Yes.
24
Q.
And on this trip, you actually took a
25
Planning and Zoning commissioner with you; is that
593
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
10
front of the bus?
11
A.
It is.
12
Q.
And are you sitting next to Roger Gibbs
A.
I think so.
13
14
15
there?
It's not a very good picture
of me, but -- at the lower right, you mean?
16
Q.
Yes.
17
A.
I would say that's probably me.
18
Q.
Mr. Heavens, Mr. Gibbs would have been aware
19
that this property wasn't within the city limits at
20
that time, wouldn't he?
21
A.
Yes.
22
Q.
And he would have also known that the
23
property would have needed to be rezoned, wouldn't he?
24
A.
I would assume he would know that.
25
Q.
The developer actually paid for these trips
594
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.
10
A.
I -- I would grant you that.
11
Q.
Now, following these bus trips to Des
I may have.
12
Moines, now that we're into early 2012, during the
13
early months of 2012, you were working to get the
14
sales tax rebate passed in the legislature for the
15
developer, weren't you?
16
17
18
A.
I was working with Representative Lukan and
Senator Hancock to accomplish that, yes.

Q.
And you were actively involved in contacting
19
the people you knew in Des Moines to make that happen,
20
weren't you?
21
A.
Somewhat active.
22
Q.
You were pretty excited when that passed and
23
proud of the work that you had done to help that,
24
weren't you?
25
A.
Yes.
595
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?
4
5
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.
10
A.
Okay.
11
Q.
Thank you.
12
A.
I'm there.
13
Q.
Okay.
If you'll turn to Exhibit 48 in your
binder.
--
On page 2 of Exhibit 48, about
14
halfway down, you were copied in on an e-mail dated
15
May 17, 2012.
Do you recall that?
16
A.
Only as reminded by this.
17
Q.
And that was an e-mail from Mick Michel, the
18
City Administrator, to the developer hammering out
19
this timeline, wasn't it?
20
A.
It appears so.
21
Q.
And in this e-mail, Mick says he's
22
reemphasizing that if the developer needs to have the
23
zoning changed to a commercial designation by
24
August 31, 2012, below is the schedule that we will
25
need to follow.
596
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?
6
7
8
9
10
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?
11
A.
It does, along with also if they don't.
12
Q.
Now, if you turn to the last page of the
13
e-mail, do you recognize that as the final timeline
14
that was established?
15
A.
It would appear to be.
16
Q.
And this -- the heading is "Timeline for
17
Development Agreement, Annexation, Re-zoning Process."
18
19
A.
You did.
20
Q.
And it was already predetermined that at an
21
August 6, 2012, City Council meeting, there would be a
22
public hearing on the zoning request?
23
A.
Could you repeat the question, please?
24
Q.
Letter F.
25
A.
Under F?
597
Q.
Yeah.
It was predetermined that on
August 6, 2012, there would be a council meeting with
a public hearing on the rezoning request?
4
5
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.
10
Q.
And at the same time "Act on Zoning
11
Ordinance - 1st Reading (may waive 2nd and 3rd
12
readings)."
13
A.
Correct, you did.
14
Q.
And if you turn the page before that, that
15
timeline was actually established before the rezoning,
16
wasn't it?
17
A.
Which page am I on here?
18
Q.
Well, there's an e-mail attaching the
19
timeline dated July, 2012.
20
A.
Well, got the May one.
21
7-12 -- okay.
22
you.
This is July --
This one -- maybe I can hold it up for
This one here is what you're looking at?
23
Q.
Sure.
So that was before the rezoning?
24
A.
Yes.
25
Q.
Mr. Heavens, I'd like to talk to you a
598
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.
10
A.
Okay.
11
Q.
Okay.
35
I've got
--
I'm there.
Now, this Memorandum of
12
Understanding was passed in March of 2012, do you
13
recall that?
14
A.
I recall it being passed, yes.
15
Q.
That was prior to the rezoning?
16
A.
Yes.
17
Q.
That Memorandum of Understanding was entered
18
into between the developer and yourself, as mayor for
19
the City of Dyersville?
20
A.
Yes.
21
Dyersville, yes.
22
Q.
Between the developer and the City of
And in that Memorandum of Understanding, the
23
City agrees -- agreed to use their best efforts to
24
annex and rezone the property of the Field of Dreams,
25
didn't they?
599
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.
10
Q.
And you didn't put any language in there
11
that said you would remain impartial and assure that
12
the rezoning proposal was fairly heard, did you?
13
A.
There's no language in there to that effect.
14
Q.
Essentially, this agreement meant that the
15
City would use their best efforts to annex the land
16
that the developer wanted from the City, didn't it?
17
A.
To me, I guess, it means that we would run
18
it through the normal processes, so to speak, keep it
19
on the front burner, not ignore it.
20
Q.
Okay.
Well, let's talk about ignoring
21
things.
22
Mr. Heavens.
23
keeping this on the front burner, did she?
24
25
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.
600
1
2
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?
10
Bottom of the
page, e-mail from Denise Stillman.
11
12
The first e-mail that was sent, the subject
A.
"Poor Jacque" -- "we believe".
Please
explain?
13
Q.
I'm on the second page, bottom half of the
15
A.
"Mayor Heavens and Mick" does it start out?
16
Q.
Yes.
17
A.
Oh, Please explain, subject line.
18
Q.
19
A.
You did.
20
Q.
Is it fair to say in this e-mail the
14
e-mail.
The re line is "Please explain."

Okay.
21
developer was raising concerns whether or not you were
22
following her timeline, wasn't she?
23
A.
That we were behind her timeline?
24
Q.
Well, let's look at the e-mail a little
25
closely.
On the very bottom of the e-mail, does it
601
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
10
A.
Yes, you did.
11
Q.
"We do not do business that way.
Had I
12
known on April 11 that we wouldn't hear from the city
13
again for another four weeks (which, again we did in a
14
nice voice mail from Mayor Heavens this afternoon), we
15
would have shifted strategy in what we tell potential
16
investors.
17
that the city is doing all it can to help get this
18
project done.
19
We cannot, in good faith, believe or say
We certainly don't feel that way."
20
A.
You did.
21
Q.
And now I'm going to direct you to the
22
second -- to the bottom paragraph.
"I do not pretend
23
to know where Jacque's job ends and Mick's begins.
24
All I know is that someone dropped the ball these last
25
four weeks."
602
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
10
her communication through your City Administrator to
11
avoid any impropriety?
12
MR. HENRY: I object.
13
THE COURT:
14
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
16
way that I would answer that, Ms. Hess, is that most
17
of the communication that was -- was between the City
18
entity and the developers was through Jacque Rahe as a
19
representative of the Dyersville Economic Development
20
Corporation.
21
22
Q.
(BY MS. HESS)
I'm going to direct you back
to the first page of that e-mail, Mr. Heavens.
23
A.
Okay.
24
Q.
Now, at the end of the e-mail chain, and
25
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.
10
A.
"Please explain confidential," yes.
11
Q.
12
A.
You did.
13
Q.
Now, this e-mail from Mike Stillman to you
14
dated May 12, 2012, says, "Thank you Mayor, As I sit
15
here at work this morning reading all these emails the
16
overriding question that remains is:
17
there or not?"
18
of 2012?
Are the votes
Was that what he was asking you in May
19
A.
Apparently was.
20
Q.
"I would have assumed by now that everyone
21
would have a handle on this.
22
know this so we can forthright with our investors
23
because frankly we thought we had the overwhelming
24
support of the city."
25
A.
You did.
Denise and I need to
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.
11
A.
I'm there.
12
Q.
Mr. Heavens, does this appear to be Molly
13
Evers' May 22, 2012, e-mail to you requesting a Work
14
Session on the Field of Dreams project?
15
A.
It is.
16
Q.
Would you agree with me that it is part of
17
the policies that have been adopted by the City of
18
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
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
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
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
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
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

law.
14
15
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
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
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
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
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
25
Yes.
656
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.
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,
12
13
14
THE WITNESS:
15
THE COURT:
16
17
I do.
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

law.
18
19
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
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
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
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.
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
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.
10
Casey.
Ms. Hess.
Mr. Casey.
11
12
We call Marc
MARC CASEY,
13
14
15
THE WITNESS:
16
THE COURT:
17
18
I do.
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
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
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.
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
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
14
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
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,
11
12
13
THE WITNESS:
14
THE COURT:
15
16
17
Yes.
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
15
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:
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
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
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?
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
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.
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.
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.
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.
THE COURT:
We can do that.
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.
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
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
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."
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.
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."
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.
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
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.
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.
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.
16
Q.
And encourage businesses, that require a
17
large amount of space and parking, to develop along
18
the highway.
19
A.
20
Q.
And then, "Ensure that adequate land and
21
infrastructure are available to develop along the
22
highway."
23
A.
24
25

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.
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.
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.
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.
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.
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

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.
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."
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.
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
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."
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."
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
THE COURT:
Ms. Hess?
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.
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.)

RAAC vs. City of Dyersville Trial Testimony 2-19-15

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

RAAC vs. City of Dyersville Trial Testimony 2-19-15

Uploaded by

Copyright:

Available Formats

583

IN THE IOWA DISTRICT COURT IN AND FOR DUBUQUE COUNTY

UPON THE PETITION OF

Hon. Thomas A. Bitter, Judge

TRANSCRIPT APPEALED: August 20, 2015

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

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

Good morning, everybody.

Are we ready with another

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

conclude the Planning and Zoning audio from July 9,

(The audio from the July 9, 2012, Planning and

Just for the record, we

finished listening to the entirety of the audio from

the July 9, 2012, Planning and Zoning Commission

Are we ready with another witness?

MS. HESS: Yes, Judge.

Can I do some setup

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

having been called as a witness on behalf of the

Petitioners, having been first duly sworn by the

Court, was examined and testified as follows:

Go ahead and have a seat.

just state your name, please.

MS. HESS: Thank you.

James Alan Heavens.

Mr. Heavens, what is your address?

866 5th Street Southwest, Dyersville.

Who is your employer?

What are you employed as?

I'm a cattle nutritionist.

Now, it's my understanding that you are the

former mayor of the City of Dyersville; is that

And I believe you told me you had two

five-year terms; is that correct?

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

Five two-year terms.

So what years did you serve as mayor of City

I was elected in 2003, took office

January 1, 2004, and left on December 31, 2013.

Now, I think we had previous discussions

going to come and develop the Field of Dreams property

was in about 2009; is that correct?

Now, in November of 2011, the developer was

asking the City to conduct a water and sewer

Do you recall that?

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

I think that was part of

our contribution to the project to initiate that

That study cost approximately $9,600?

I believe that's correct.

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

here during some of these proceedings.

present when we watched the video of the November 21,

2011, City Council meeting?

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

paid for, is that your recollection?

Do you recall other members of the public

coming to City Council meetings and requesting that

the council do studies on other issues other than

water and sewer feasibility?

I believe that they did, yes.

And none were done, were they?

I guess my recollection of that would be