BEFORE THE CITY DEVELOPMENT BOARD OF IOWA
John F. Anderson )
Regarding A98-03 ) Resistance to Des Moines
) motion to amend A98-03
Comes now John F. Anderson in resistance to the Des Moines motion to amend A98-03.
Since precedence is a matter of consideration before the Board I would like to correct some obvious errors contained within the motion of Des Moines. Of foremost concern is the chronology of events, West Carlisle, after notice and public hearing submitted their petition prior to the city of Des Moines filing, Des Moines was able to get the dates correct but placed them out of order making the statement of fact skewed if not incorrect. Secondly, West Carlisle is involuntarily annexing Carlisle, not seeking to be annexed by that city, Mr. Bergman may have missed this subtlety but it is germane because filing that cities petition elevated Des Moines to statutory equality with West Carlisle in 368.11.
368.11 conveys upon the City Development Board the power to "combine for consideration petitions or plans which concern the same territory or city" along with the power to accept or dismiss a petition.
The CDB does not have the statutory authority to divide the proposed territory into two or more parts, and if they have previously done so in A88-02 then the code must have been different or the CDB violated the statutes in chapter 368. Currently, only the committee may amend a petition or plan as statutorily directed in 368.
368.18 specifically conveys upon the committee the power to "amend a petition or plan".
There is a clear separation of power in chapter 368 which allows the CDB to only accept, dismiss or combine with another petition, any petition or plan presented to the Board. The power to amend the petition, as affirmed at the October meeting by the Attorney General when Des Moines first attempted to amend their petition, belongs to the committee.
The CDB has only the power to accept or dismiss A98-03 and does not have the power to amend the petition as Des Moines has requested and any action by the board upon A98-03 at this time would only serve to muddy waters that are already unbelievably murky. The Board, while sympathetic, should remember that Des Moines was free to submit petitions for each of the "four distinct areas" of their petition and is still able to withdraw the petition in order to do so. However, by submitting proper petitions for each of the four areas they would lose the ability to play shell games with city services and would probably not be able to justify any singular petition.
Furthermore, by appealing to the Iowa Supreme Court, objecting to the District Courts affirmation of rural residents rights, the Board will be directed to dismiss the Des Moines petition outright. That court is free to deliberate and will doubtless rule that the CDB, the cities and the Attorney General have applied 368.4 incorrectly. The antecedent statute 362.26(7,8) clearly stated, and the current one also decrees, if read with the definitions of 362.2 , that none of the agreeing cities can initiate annexations within the territory of the moratorium. That proscription would include voluntary and involuntary annexation by the city council leaving only the residents within the territory free to initiate an involuntary annexation. Any action by the board at this time would be reversed by the courts decision and any time spent upon the issue by the Board would be wasted.
The areas sought by Des Moines, East of Norwalk, South and West of Carlisle and West of Altoona are occupied by residents and electors who have no desire to join with Des Moines. This executive branch Board professed, incorrectly, in the West Carlisle deliberations (A98-02) that rural residents have no choice when their homes are included in a 368.4 agreement thus discouraging and preventing those Iowans from pleading before the board to express their own choice of community. The judicial branch of government was represented by the Attorney General thus presenting a bleak outlook with seemingly insurmountable obstacles to their pursuit of what they consider safety and happiness. Many of those people have expressed, to me, their desire to involuntarily annex their own adjacent communities now that their right to do so is clear and cannot be barred by the CDB and AG. To proceed on the Des Moines petition before the completion of the Boards appeal of the West Carlisle ruling would precipitate a flurry of involuntary annexations by those residents whose rights were arguably denied and barred by the expressed opinions, presented as law, of the CDB, thus resulting in more action within the courts.
The petition, A98-03, is currently beyond the reach of the city of Des Moines or the City Development Board to amend. Even its progress to this point is the subject of litigation by Warren County which could, again, require outright dismissal. Proceeding in any way will complicate litigation already underway and bring about new suits in court which is why the board agreed to staying proceedings on A98-03 rather than insisting that an injunction from the courts be obtained.
There are only two legal and prudent courses of action on the Des Moines petition A98-03 at this time:
- To await the Supreme Courts ruling which will ultimately decide if the CDB could proceed or if the Des Moines petition, as well as any other annexation by a 368.4 signatory, should be summarily dismissed and reversed, and the agreements enforced by the Board as the law was historically, and is currently, written.
- For the city of Des Moines to withdraw it's petition..
For the reasons contained within, I urge and pray that the City Development Board take no action on A98-03.
John F. Anderson .
4491 SE 40th Street
Allen Township, Iowa