In The Iowa District Court for Polk County
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City of Des Moines, Iowa                           )
077011A                                                    )
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                                                                  ) CASE A.A.3362
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City Development Board of                       )         Petition For
the State of Iowa, et al.,                               )     Judicial Review
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Respondents.                                            )
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Comes Now the petitioner, the city of Des Moines and for its petition states:

  1. The petitioner city of Des Moines (hereafter "city") is a municipality organized under the laws of the State of Iowa located in Polk County, Iowa.

  2. The Respondent, the City Development Board (hereafter "CDB"), is an administrative agency organized and existing under the laws of the State of Iowa. The other Respondents are entities and individuals who have participated in the proceedings before the CDB which form the basis for this petition.

  3. On or about July 2, 1990, the city and the City of Carlisle entered into a written annexation moratorium agreement pursuant to Iowa Code Section 368.4, which agreement expires on or about July 2, 2000.

  4. On June 15, 1998, Respondent John Francis Anderson and other residents of a territory self -described by them as "West Carlisle" filed a Petition for Involuntary Annexation of the City of Carlisle with the CDB.

  5. On June 24, 1998, the City of Des Moines filed a Petition for Involuntary Annexation of certain areas (including that lived in by Anderson and the other residents of "West Carlisle") with the CDB (hereafter "petiton")

  6. On July 16, 1998 the CDB held a hearing as required by Iowa Code Section 368.11 and 368.12 and dismissed the Anderson petition.

  7. On August 24, 1998, Mr. Anderson appealed the decision of the CDB to dismiss his petition to the Iowa District Court in Polk County (hereafter the "Anderson case " ).

  8. On September 10, 1998, the City Development Board held a hearing pursuant to Iowa Code Section 368.11 and 368.12 and received and approved the city's petition.

  9. Also on September 10, 1998 rather than appointing a committee to oversee the progress of the city's petition pursuant to Iowa Code §§368.11 and 368.14, the CDB decided to table or stay (hereafter "stay") all action upon the city's Petition until a District Court decision was rendered in the Anderson case.

  10. Iowa Code Section 368.11 reads, in pertinent part:

            Within ninety days of receipt of a petition, the board shall initiate appropriate proceedings or dismiss the petition (emphasis added)

    11. Iowa Code Section 368.14 reads in pertinent part:
           If an involuntary petition is not dismissed the board shall direct the appointment of local representatives to serve with board members as a committee to consider the proposal. (emphasis added)

    12. Iowa Administrative Code 263-2.8 provides in pertinent part:
           If a Petition is not dismissed, the Board shall direct the appointment of local representatives to serve with the Board as a            City Development Committee, pursuant to Iowa Code Section 368.14. (emphasis added)

    13. On October 9, 1998 Respondent Joseph R. Dunn and other residents of Warren County, as well as Warren County itself and the Iowa Rural Rights Association, filed a Petition for Writ of Certiorari with the Warren County District Court challenging the decision of the CDB not to dismiss the city's Petition (hereafter the "Warren County case").

    14. On March, 9, 1999, the Warren County District Court dismissed the Warren County case.

    15. On April 8, 1999, the Warren County case was appealed to the Iowa Supreme Court.

    16. On May 14, 1`999 the District Court for Polk County isued its decision in the Anderson case. Effectively, this decision lifted the stay on the city's Petition before the CDB.

    17. On June 8, 199, the CDB appealed the Anderson case to the Iowa Supreme Court. The city joined in the appeal on June 9
    th.

    18. On June 17, 1999, the CDB met to consider, among other items, whether to reinstitute the stay of the city's Petition which had expired with the ruling of the Polk County District Court on the Anderson case. All of the other Respondents argued in favor of reinstituting the stay.

    19. Despite repeated urgings from the city that it would be irreparably damaged and prejudiced by any further delay, the CDB exercised jurisdiction over the city's petition and voted 3-0 to reinstitute the stayt of the city's Petition, this time until both the Anderson case appeal and the Warren County case appeal were finally decided by the Iowa Supreme Court.

    20. Another item considered by the CDB on June 17, 1998, was whether to divide the city's annexation petition into two or more separate areas. The CDB again exercised jurisdiction over the city's petition on that date but denied the motion to divide. The denial of that motion is not on appeal here.

    21. On July 6, 1999, the city filed a petition for writ of mandamus/ writ of certiorari in the Polk County District Court, CE 38382, attacking the imposition of the stay.

    22. The CDB and all other respondents save Anderson moved to dismiss, claiming judicial review under Iowa Code § 17A was the proper method of attacking the imposition of the stay and therefore the court lacked jurisdiction.

    23. On October 15, 1999, the Honorable Robert J. Wilson dismissed the case for lack of jurisdiction.

    24. The city has a right pursuant to Iowa Code Chapter 368 to attempt an involuntary annexation of territory outside its existing municipal boundaries.

    25. The CDB has a duty pursuant to Iowa Code Section 368.11 and 368.14 and Iowa Administrative Code 263.-2.8, as previously cityed, to initiate appropriate proceedings within 90 days of receipt of a petition for involuntary annexation which is not dismissed.

    26. The CDB has not dismissed the city of Des Moines' Petition of involuntary annexation.

    27. The CDB has not taken appropriate action upon the city's Petition and in fact has stayed the same for more than 13 months as of the filing of this action.

    28. Nobody knows or can say when action will be taken because the stay imposed by the CDB is to an unknown date in the future. In fact, the stay may last for years because the CDB itself anticipates other suits upon the city's petition.

    29. The city will suffer irreparable injuries of substantial dimensions if the CDB is allowed to continue to avoid its statutory duties by staying indefinitely action on the city's Petition. Such harm includes but is not limited to:

      a. Information contained in the annexation petition, which was compiled as a result of a significant expenditure of time and money by the city, may become dated before the CDB acts on the Petition. Thus, the city will have to update the information, at the cost of still more time and money, or any foe t the annexation will be able to attack the petition as containing old, useless, inaccurate and stale information. Plus, updating the information will take still more time causing still more delay.

      b. The city will be precluded from taking advantage of the aforemention annexation moratorium agreement between itself and the City of Carlisle because the agreement will expire in July of next year before a decision is rendered by the Iowa Supreme Court on either case which forms the basis for the stay imposed by the CDB.

      c. The posture of the CDB - staying action upon the city's petition while suits somehow related to it are pending - promotes piecemeal litigation and encourages opponents of the petition to string out their suits, thus assuring that the petition will never be heard on its merits and assuring the city of continuous and overwhelming litigation expenses for years to come.

      d. None of the monetary losses suffered by the city and its citizens is compensable by the CDB or any other respondent.

      e. The loss of the benefit of the annexation moratorium agreement with Carlisle is not compensable by the CDB or any other respondent.

    30. The indefinite stay imposed by the CDB upon the city's Petition for Involuntary Annexation is arbitrary, unreasonable and without substantial supporting evidence for reasons including, but not limited to, the following:

      a. The imposition of the stay completely ignores the wishes of the approximately 190,000 citizens of the city that the involuntary annexation process go forward culminating in an election in which the people will decide in democratic fashion the fate of the annexation petition.

      b. The CDB has no statutory authority in Iowa Code Chapter 368 to indefinitely stay action upon a petition for involuntary annexation which it has otherwise accepted.

      c. The CDB has no administrative authority in Iowa Administrative Code Chapter 263 to indefinitely stay action upon a petition for involuntary annexation which it has otherwise accepted.

      d. The CDB has no common law authority to indefinitely stay action upon a petition for involuntary annexation which it has otherwise accepted.

      e. The stay imposed by the CDB is in effect a permanent stay because the CDB has indicated that it will stay action upon the petition whenever any action is filed in any court which is in any way related to the petition. Thus, the city will never be able to have the people decide the fate of the petition, as is the legislative intent evidenced in Iowa Code Chapter 368.

      f. The actions of the CDB in this case mean that every annexation petition in Iowa can be halted, indefinitely and perhaps permanently, simply by the filing of a lawsuit claimed to be related in some way to the attempted annexation.

      g. The stay was made primarily for the convenience of the CDB

      h. The stay unfairly places huge administrative costs upon the city because if and when the CDB finally does consider the city's petition, large amounts of critical and necessary sophisticated and esoteric financial and socio-economic information may have become stale, thus necessitating the regathering of facts and the regeneration of data to satisfy the statutory requirements for a petition for involuntary annexation.

      i. The decision to indefinitely stay the city's Petition for Involuntary Annexation was made because of the personal dislike of individual members of the CDB for the provisions of Iowa Code Chapter 368.

      j. The stay unfairly and prejudicially prevents the city from taking advantage of the aforementioned moratorium agreement with the City of Carlisle.

      k. The entire record before the CDB, when viewed as a whole, shows that the evidence presented does not outweigh the obvious legislative intent to let the people decide - and decide sooner rather than later - upon petitions for involuntary annexation.

      l. The decision to indefinitely stay action upon the city's Petition for Involuntary Annexation allows the appeals taken by Anderson and Warren County to halt all action upon the city's Petition without the posting of a supersedeas bond as required by the Iowa Rules of Appellate Procedure, and leaves the city with no recourse for the huge financial expenses it will incur.

      m. The decision of the CDB to indefinitely stay action upon the city's Petition for Involuntary annexation is contrary to the grant of home rule given to the city by the Iowa Constitution, Article III, Section 38A.

      n. The Anderson appeal involved questions related only to the Anderson Petition and does not involve the city's Petition in any way, shape or form.

      o. The Warren County appeal involves only the question of jurisdiction and the exhaustion of administrative remedies and does not involve any substantive question related to the city's Petition for Involuntary Annexation.

      p. The decision of the CDB to indefinitely stay action upon the city's Petition for Involuntary Annexation for as long as suits related to the Petition are pending actually encourages such suits and exposes the city (and the CDB) to an endless series of suits, each of which will involve the expenditure of scarce municipal, state and judicial resources.

    31. The city has exhausted all adequate administrative remedies.

    32. For the reasons stated above and for the very reason that it is unknown and unknowable when, if ever, the CDB will take final agency action upon the city's Petition for Involuntary Annexation, review of such final agency action will not provide the city with an adequate remedy.



WHEREFORE, the city prays the Court reverse the decision of the CDB, remand this case to the CDB with appropriate directions to dissolve the stay and proceed with the city's Petition for Involuntary Annexation pursuant to chapter 368, and for such other relief as is appropriate.



signed


Mark Godwin
Deputy City Attorney
City Hall
400 East First Street
Des Moines Iowa 50309-1891
telephone 515 283-4110