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IN THE IOWA DISTRICT COURT


DUBUQUE COUNTY
- - - - - - - - - - - - - - - X
:
Upon the Petition of
:
:
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, 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,
:
:
Petitioners,
:
:
vs.
:
:
DYERSVILLE CITY COUNCIL,
:
MAYOR JAMES A. HEAVENS,
:
MIKE ENGLISH, MARK
:
BREITBACH, ROBERT T. PLATZ,
:
MOLLY EVERS and
:
DAN WILLENBORG,
:
:
Respondents,
:
:
:
- - - - - - - - - - - - - - - X

CVCV 101023
DEPOSITION OF
MICHAEL MICHEL

Deposition of MICHAEL MICHEL,


taken at the offices of Fuerste, Carew, Juergens
& Sudmeier, P.C., 151 West Eighth Street, Suite
200, Dubuque, Iowa, commencing at 9:05 a.m.,
November 20, 2013, before Christal A. Hansen,
Certified Shorthand Reporter.

APPEARANCES

1
2
3
4
5
6
7
8
9

SUSAN M. HESS, Attorney,


HAMMER, SIMON & JENSEN,
775 Sinsinawa Avenue, East Dubuque,
Illinois 61025, (815) 747-6999, appeared
on behalf of the Petitioners.
DOUGLAS M. HENRY, Attorney,
FUERSTE, CAREW, JUERGENS & SUDMEIER, P.C.,
151 West Eighth Street, Suite 200,
Dubuque, Iowa 52001, (877) 455-2249,
appeared on behalf of the Respondents.
Also Present:

10

Matt Mescher
Jeff Pape
* * *

11
12
13

INDEX

14
15

WITNESS

16

MICHAEL MICHEL

17
18
19
20
21
22
23
24
25

Examination by Ms. Hess

PAGE

EXHIBITS

1
2

Exhibit No(s)

Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition
Deposition

4
5
6
7
8
9
10
11

Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit
Exhibit

Page
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16

15
26
30
32
35
49
61
77
77
77
77
77
85
88
94
103

12
13
14

(Original exhibits retained by Attorney Hess)

15
16
17
18
19
20
21
22
23
24
25

Certificate of Shorthand Reporter

109

MICHAEL MICHEL

called as a witness, after having been first

duly sworn, was examined and testified as

follows:
MS. HESS:

This is the deposition

of Mick Michel.

I'm reserving the right to

re-depose Mr. Michel based on the complexity and

number of cases that are pending and may or may

not be consolidated.

Let the record also

10

reflect this deposition is taken pursuant to the

11

Iowa Rules of Civil Procedure.


EXAMINATION

12
13
14
15

BY MS. HESS:
Q.

Mr. Michel, have you had your

deposition taken before?

16

A.

In this case, no.

17

Q.

In any case.

18

A.

Yes.

19

Q.

So, you're familiar with the process?

20

A.

Yes.

21

Q.

I'm just going to remind you to give a

22

yes or no response.

23

the court reporter can get it down.

24

fair?

25

A.

Yes.

Don't shake your head so


Is that

Q.

And if I ask a question that you don't

understand, I'm assuming that if you give me an

answer, that you've understood my question.

that fair?

A.

Yes.

Q.

What did you do to prepare for your

Is

deposition today?

A.

Nothing.

Q.

You didn't review any documents?

10

A.

No.

11

Q.

Other than talking with your attorney,

12

did you have any discussions with anyone to

13

prepare for your deposition today?

14

A.

No.

15

Q.

How long have you -- strike that.

16
17

is your address?
A.

Home address or -MR. HENRY:

18
19
20
21
22

What

A.

Sure.

624 Tenth Avenue Court Southwest,

Dyersville.
Q.

How long have you been a resident of

Dyersville?

23

A.

Since 2005.

24

Q.

Who is your employer?

25

A.

City of Dyersville.

Q.

What are you employed as?

A.

City administrator.

Q.

How long have you been a city

administrator?

A.

Ten years.

Q.

What was the date of employment?

A.

December 2003.

Q.

Where were you before you were the city

administrator of Dyersville?

10

A.

East Dubuque, Illinois.

11

Q.

Was that also in the capacity of city

12

administrator?

13

A.

No.

14

Q.

What was that role?

15

A.

City manager.

16

Q.

Can you tell me what the difference is

17
18
19
20

between a city manager and a city administrator.


A.

I'm sorry.

I don't understand the

question.
Q.

What's the difference between being a

21

city manager, your role as a city manager and

22

your role as a city administrator?

23

A.

In what state?

24

Q.

In Illinois, you were city manager in

25

Illinois?

1
2
3
4
5

A.

Yeah.

They have different rules, so I

can't answer that question.


Q.

What were your roles as city manager in

Illinois?
A.

I overseen the day-to-day operations of

the city and took direction by the mayor and

city council and had the ability to hire and

fire.

Q.

In your role of overseeing the

10

day-to-day operations, what kinds of things

11

would you do as city manager in Illinois?

12

A.

I don't recall.

13

Q.

You don't recall any specific --

14

A.

No.

15

Q.

-- duty, responsibility?

16

A.

No, I don't recall.

17
18
19
20

It was 10 years ago.

It's been a long

time.
Q.

What is your role as city administrator

in the City of Dyersville?


A.

I handle the day-to-day responsibility

21

as outlined by the city code that dictates the

22

duties of the city administrator.

23
24
25

Q.

Anything more specifically in terms of

what you do in your day-to-day role?


A.

No.

As outlined in the city code.

Q.

Do you develop budgets?

A.

Yes.

Q.

Do you supervise expenditures?

A.

Yes.

Q.

Do you provide technical support?

As directed by the city council.

As directed by the city code.

MR. HENRY:

6
7

clear.

support" is unclear to me.

Could you be more

The meaning of the phrase "technical

Q.

Do you understand the question?

10

A.

No.

11

Q.

Do you provide technical support in

12

terms of equipment, computers, that sort of

13

thing?

14

A.

Yes.

15

Q.

Do you propose any policy in your role

16

as city administrator?

17

A.

Just as outlined by the city code.

18

Q.

Is there a specific section in the city

19

code that you're referring to?

20

A.

No.

21

Q.

Do you have anyone that reports to you?

22

A.

Yes.

23

Q.

Who is that?

24

A.

All department heads as it relates to

25

the city code.

1
2
3

Q.

Can you tell me which department heads

report to you.
A.

City clerk, public works director, park

and rec director.

be the fire chief and also the police chief.

Q.

In reference to budget would

Prior to your role as city manager for

the City of East Dubuque, do you have any other

administration experience with regard to

municipalities?

10

A.

Yes.

11

Q.

Can you tell me about that?

12

A.

City of East Moline.

13

Q.

In what years?

14

A.

1996 to 1998.

15

Q.

And why did you leave there?

16

A.

To accept a position as city manager in

17
18

East Dubuque, Illinois.


Q.

Prior to City of Moline, did you have

19

any other administrative municipality

20

experience?

21
22

A.

Excuse me.

I thought I said

East Moline.

23

Q.

East Moline.

24

A.

No.

25

Q.

What was your work experience prior to

10

1
2
3

working for the City of East Moline?


A.

I was an assistant to the economic

development director.

Q.

For the City of East Moline?

A.

That's correct.

Q.

In what years?

A.

I'm sorry.

I thought you were talking

about the City of East Moline.

Q.

Prior to that.

10

A.

None.

11

Q.

Where did you work prior to the

12
13
14
15
16

City of East Moline?


A.

I was in college, and I worked part

time at RadioShack.
Q.

Who hired you for the city

administrator position at Dyersville?

17

A.

The city council.

18

Q.

Do you know what the makeup of the city

19
20
21
22
23

council was at the time you were hired?


A.

I'm sorry.

Can you repeat the

question.
Q.

Who were the members of the city

council when you were hired?

24

A.

I don't recall.

25

Q.

So, do you answer to the city council?

11

Is that who you report to?

A.

Yes.

Q.

And you also have responsibilities to

the citizens of Dyersville?

A.

Yes.

Q.

What are those responsibilities?

A.

It's outlined in the city

8
9

administration code section of the city code.


Q.

Can you tell me in your own words

10

without referring to the city code what your

11

responsibilities are?

12
13
14

A.

To manage the day-to-day operations as

guided by the city council.


Q.

Let's talk a little bit about the

15

development of the Field of Dreams property.

16

What was your first interaction with anyone from

17

Go the Distance Baseball?

18

MR. HENRY:

I object.

That's

19

beyond the scope of any issue remaining in this

20

case in which this deposition is being taken.

21

Q.

You can answer the question.

22

A.

December of 2011.

23
24
25

Not clear on the

date, but I think it's in December 2011.


Q.
you had.

Can you tell me about the meeting that

12

A.

I don't recall.

Q.

Can you tell me who attended the

meeting?

A.

I don't recall.

Q.

You don't recall anyone that attended

the meeting?
MR. HENRY:

7
8
9
10

That was not your

question.
Q.

Do you recall anyone that attended the

meeting?

11

A.

I don't recall.

12

Q.

So, you went to a meeting in December

13

2011, and you don't remember who was at the

14

meeting?

15
16
17

A.

I believe it may have been in December

of 2011, but I don't recall.


Q.

Tell me what you remember, location,

18

time, people that attended this December 2011

19

meeting.

20

A.

I don't know.

21

check my calendar.

22

that stuff, so...

23
24
25

Q.

I'd have to go back and

I wasn't prepared for any of

You have a written calendar outlining

dates of meetings with individuals?


A.

No.

13

Q.

You have an electronic calendar?

A.

Yes.

Q.

Would you be willing to provide a copy

of your electronic calendar from December of

2011 to the present to your attorney as it

relates to this case?

7
8
9
10

A.

It's a matter of public record, so I

don't have an issue with it.


Q.

Your calendar is a matter of public

record?

11

A.

Yes.

12

Q.

So, that calendar would have these

13

dates on it?

14

A.

Sure.

15

Q.

Would it also have the location and the

16

times of the meetings?

17

A.

I don't know.

18

Q.

Do you remember what was discussed at

19

the December 2011 meeting?

20

A.

No.

21

Q.

Is December 2011 the first time that

22

you were aware of any proposed development of

23

the Field of Dreams property?


I don't know, because I don't recall

24

A.

25

that date.

14

Q.

What's your first memory of any details

with regard to the proposed development of the

Field of Dreams?
MR. HENRY:

Again, I object.

It's beyond the scope of any issue that remains

pending in this case.

Q.

You can answer the question.


MR. HENRY:

8
9

There will come a

time, if this is going to be a deposition about

10

another case, there will come a time when we

11

have to restrict and limit the questions and the

12

testimony.

13

the question, but I just want you to know

14

there's going to come a time.

15

questions about this case, I suggest that you

16

get to them.

At this point I'll let him answer

MS. HESS:

17

So, if you have

When you refer to

18

"this case," you're talking about the building

19

permit issue?

20

MR. HENRY:

21

MS. HESS:

Yes.
And I reserve the

22

right to re-depose Mr. Michel based on the

23

pending Motion to Consolidate.

24

to restrict the deposition at this time to that

25

issue, we can do that, but I'll be taking the

So, if you want

15

deposition again following the ruling on the

Motion to Consolidate.
MR. HENRY:

3
4

Q.

That's fine.

Who prepared the Ordinance 770 with

regard to the rezoning of the property at the

Field of Dreams location?

A.

Can you repeat the question, please.

Q.

Who prepared the Ordinance 770?

A.

I'm sorry.

Q.

Okay.

10
11

I don't know which one that

is.
I'll hand you a copy of it here

12

once I find it.

I'll hand you what's been

13

marked as Petitioners' Exhibit 1.

14

to the third page of that exhibit, you'll see

15

Ordinance No. 770.

16

that document?

If you'd turn

Can you tell me who prepared

17

A.

City Attorney Marc Casey.

18

Q.

Attorney Marc Casey prepared this

19

document?

20

A.

City Attorney Marc Casey, M-A-R-C.

21

Q.

Did you review this document prior to

22

presenting it to the council?

23

A.

Yes.

24

Q.

Who else reviewed it prior to

25

presenting it to the council?

16

A.

No one.

Q.

Did you have any meetings with regard

to Ordinance 770 prior to presenting it to the

council?

5
6
7

A.

I'm sorry.

I don't understand the

question.
Q.

Did you have any meetings with regard

to Ordinance 770 prior to presenting it to the

council?

10
11
12
13

A.

I'm sorry.

the question.
Q.

I still don't understand

Meetings with whom?

Well, that's what I'm asking.

with anyone.

14

A.

City Attorney Marc Casey.

15

Q.

Do you remember the date of the

16

Meetings

meeting?

17

A.

No.

18

Q.

Do you remember who was present at the

19
20
21
22

meeting?
A.

I'm sorry.

It wasn't a meeting.

was a phone call.


Q.

A phone call.

Was anyone else on the

23

phone call other than yourself and Attorney

24

Marc Casey?

25

It

A.

Not that I recall.

17

1
2

Q.

What was discussed during the phone

call?

A.

I'm sorry.

Q.

You had a phone conversation with

I don't recall.

regard to Ordinance 770, correct?

A.

From what I recall.

Q.

And you don't recall anything about the

conversation; is that what you're telling me?

A.

Yes.

10

Q.

During the phone call do you remember

11

discussing the legal description?

12

A.

Not that I recall.

13

Q.

Prior to presenting Ordinance 770 to

14

the council, other than one phone conversation

15

with Attorney Marc Casey, did you have any other

16

meetings or phone conversations with anyone

17

else?
MR. HENRY:

18

About?

19

Q.

Ordinance 770.

20

A.

Can you repeat the question, please.

21

Q.

Other than the one phone call you've

22

already told me about with Attorney Marc Casey

23

prior to presenting Ordinance 770 to the

24

Dyersville City Council, did you have a meeting

25

or phone conversation with anyone else?

18

A.

Not that I recall.

Q.

Is it possible that you had other phone

conversations or meetings with other people

about Ordinance 770?

A.

Maybe.

Q.

Would your calendar indicate that you

had any meetings if you reviewed your calendar?

A.

Maybe.

Q.

Can you describe to me what

10
11

Ordinance 770 is.


A.

It's an ordinance amending the current

12

city zoning ordinance and adding the property

13

from A-1 to C-2 commercial with conditions for

14

the Field of Dreams project.

15
16

Q.

And you indicated that Attorney

Marc Casey prepared this, correct?

17

A.

From what I recall, yes.

18

Q.

At whose direction did he prepare it?

19

Who directed Marc Casey to prepare this?

20

A.

Me.

21

Q.

Do you remember the date you directed

22

him to prepare it?

23

A.

No.

24

Q.

Where did you get the information that

25

you provided to Attorney Marc Casey to prepare

19

1
2
3

this ordinance?
A.

Legal description was prepared by

Snyder & Associates, a surveyor.


Any other information contained in the

Q.

ordinance?

from --

Where did you get that direction

A.

Did not.

Q.

-- to give to Marc Casey?

A.

Did not.

10

Q.

So, you, yourself, gave Attorney

11

Marc Casey all the information he needed to

12

prepare Ordinance 770 other than the legal

13

description?

14

A.

No.

15

Q.

Who else gave input to the ordinance?

16

A.

The only thing I did was just give the

17

legal description as outlined here and forwarded

18

that to City Attorney Marc Casey.

19

Q.

Where did Marc Casey get the remaining

20

information, the conditions and direction to

21

prepare Ordinance 770?

22

A.

He prepared it.

23

Q.

Someone gave him direction to prepare

24
25

it, correct?
A.

Correct.

To prepare an ordinance.

20

Q.

Yes.

A.

And that's what he did.

Q.

Anyone other than yourself give

Marc Casey direction in preparing this?

A.

Not that I recall.

Q.

Tell me how it originated that you

contacted Marc Casey to prepare this.

A.

By phone conversation.

Q.

Phone conversation with whom?

10

A.

With Marc Casey.

11

Q.

How did you come to tell Marc Casey to

12

prepare this?

Who gave you direction to have

13

Marc Casey prepare Ordinance 770?

14

A.

City council.

15

Q.

When?

16

A.

I don't know.

17

Q.

Would that have been during a regular

18

city council meeting?

19

A.

Yes.

20

Q.

Other than that regular city council

21

meeting, did the city council meet with you at

22

any time to give you direction in preparing

23

Ordinance 770?

24

A.

No.

25

Q.

Did you get input from anyone at

21

Go the Distance Baseball or Denise Stillman or

any other affiliate of Go the Distance in

preparing Ordinance 770?

A.

Not that I recall.

Q.

Is it possible that you did and you

just don't remember?

A.

It may be possible.

Q.

Let's go back to any meetings that

you've had with Go the Distance leading up to

10

Ordinance 770.

Do you recall having any meeting

11

with any affiliate from Go the Distance Baseball

12

leading up to the time of Ordinance 770?

13

A.

Maybe.

14

Q.

What meetings do you remember?

15

A.

Just courtesy phone calls.

16

Q.

Who would have originated the phone

17

call?

18

A.

I don't recall.

19

Q.

Who was the phone call with?

20

A.

Possibly Denise Stillman.

21

Q.

What was discussed during the phone

22

calls?

23

A.

Just project update.

24

Q.

Do you recall who would have originated

25

those phone calls, if it was Denise calling you

22

or you calling Denise?

A.

I don't know.

Q.

How many times would you talk to Denise

leading up to Ordinance 770?

Weekly?

A.

Maybe.

Q.

Daily?

A.

No.

Q.

How long would those phone calls

9
10
11

typically last?
A.

They were courtesy, so they could have

lasted anywheres from five to 10 minutes.

12

Q.

What do you mean by "courtesy"?

13

A.

Just project, update on the project.

14

Q.

Were you giving her updates, or was she

15
16

giving you updates?


A.

She was just asking questions in

17

regards to the status of the project at the, at

18

the city council and possible dates of actions

19

that needed to be taken.

20

I recall.

21

Q.

That's the only thing

Did Denise Stillman review

22

Ordinance 770 prior to you presenting it to the

23

city council?

24

A.

Not that I recall.

25

Q.

Then the final page of Petitioners'

23

1
2
3

Exhibit 1, can you tell me what that is?


A.

I believe it may be a public notice in

the newspaper.

Q.

And is it with regard to Ordinance 770?

A.

Yes.

Q.

Why is that published in the paper?

A.

Because it's required by state statute.

Q.

Do you know why it's required?

A.

Because the code requires that.

10

Q.

Is it, the purpose of it to put people

11

on notice?
MR. HENRY:

12

I object.

13

legislative enactment, he's not competent to

14

express an opinion about the purpose of a

15

legislative enactment.

16
17

Q.

published in the paper?


MR. HENRY:

18
19

MS. HESS:

Are you instructing

him not to answer the question?


MR. HENRY:

22
23

Same objection.

Incompetent opinion and conclusion.

20
21

Do you have an opinion as to why it's

I did not instruct

him not to answer the question.

24

Q.

Go ahead and answer.

25

A.

I do not.

24

Q.

Would you agree with me that publishing

something in the newspaper gives people an

opportunity to see what's happening with this

piece of property?

A.

Can you repeat the question, please.

Q.

Would you agree with me that publishing

a notice like this in the paper gives the public

an opportunity to see what's happening with a

particular piece of property?

10

A.

I don't know.

11

Q.

When did Denise Stillman start

12

attending city council meetings?


MR. HENRY:

13

Object.

It's beyond

14

the scope of the issues remaining in this case.

15

It's not reasonably calculated to lead to

16

evidence that's admissible in this case.

17

Q.

Go ahead and answer.

18

A.

I don't know.

19

Q.

You don't have any idea when

20

Denise Stillman started attending city council

21

meetings?

22

A.

Don't know.

23

Q.

Does Denise Stillman get the agenda

24
25

packet at the city council meetings?


A.

I don't believe so.

25

Q.

Who puts together the agenda packets?

A.

Staff does.

Q.

Who in your staff?

A.

Various people such as myself, the city

clerk.

could be management adding items to the agenda.

Q.

Depending on the time of the month,

Is there any reason why Denise Stillman

would get an agenda packet prior to a city

council meeting?

10

A.

I don't know.

11

Q.

You, yourself, never directed anyone to

12

provide Denise Stillman an agenda packet?

13

A.

No.

14

Q.

Can you tell me why the city council

15

would waive the second and third reading of

16

Ordinance 770?
MR. HENRY:

17

Object.

He's

18

incompetent and calls for an incompetent opinion

19

and conclusion regarding the action of a

20

governmental body.

21

Q.

You can tell me if you know.

22

A.

I don't know.

23

Q.

So, as city administrator you would

24

have no experience or understanding in why a

25

city council would waive the reading, waive the

26

second and third reading of Ordinance 770?

A.

It's at their discretion.

Q.

Do you deal with legal descriptions a

A.

At times.

Q.

Would you agree with me that it's

lot?

important to have an accurate legal description?

A.

Yes.

Q.

And if you don't, you could

10

mis-describe an entire parcel of property,

11

couldn't you?

12

A.

Maybe.

13

Q.

Did anyone ever review the legal

14

description that was used in Ordinance 770 other

15

than yourself and Marc Casey?

16

A.

No.

17

Q.

I'm going to hand you Petitioners'

18

Exhibit 2.

19

A.

Can you tell me what that is?

It appears to be an Affidavit of

20

Mary Jo Goldsmith with supplemental materials

21

attached to that affidavit.

22
23

Q.

It's an agenda of a Dyersville City

Council meeting of August 6, 2012, correct?

24

A.

No.

I would disagree with that.

25

Q.

Does the third page of this exhibit, is

27

it titled Agenda - Dyersville City Council

Meeting, August 6, 2012?

A.

It is an agenda sheet dated for

August 6, 2012, the supplemental information but

not the complete packet of the city council

agenda.

7
8

Q.

And attached to that agenda is a Notice

of a Public Hearing; is that correct?

A.

No.

10

Q.

What is it?

11
12

What's on the page

following the agenda?


A.

It's an affidavit showing a Notice of

13

Public Hearing with some supplemental

14

information in the Ordinance 770.

15

Q.

What is the public hearing about?

16

A.

It's in regards to All-Star Ballpark

17
18
19

Heaven complex at the existing Field of Dreams.


Q.

It's a Notice of a Public Hearing to

rezone that property, isn't it?

20

A.

Yes.

21

Q.

And on that Notice of Public Hearing

22

the legal description that appears there is for

23

the southwest quarter of the southeast quarter

24

of Section 22, correct?

25

A.

It has a statement of that, of that.

28

1
2

Q.

And you later found out that that was

an incorrect legal description, right?

A.

Yes.

Q.

It actually should have been the

southeast quarter of the southeast quarter of

Section 22, right?

A.

Maybe.

Q.

You don't know what the correct legal

9
10
11
12
13

description is?
A.

I don't know.

I'd have to look at

documents showing what the legal description is.


Q.

This one that was given as a Notice of

a Public Hearing is incorrect, isn't it?

14

A.

Maybe.

15

Q.

You don't know if it's incorrect?

16

A.

I don't know.

17

I don't know what the

correct legal description is.

18

Q.

Who would know?

19

A.

Maybe a surveyor or city attorney.

20

Q.

You're telling me you don't know if

21
22

this is correct or not?


A.

No.

I'd have to look at the -- what

23

the actual legal description is.

24

incorrect.

25

Q.

It may be

It may be incorrect, but you're telling

29

1
2

me you don't know?


A.

I don't know with 100 percent certainty

if it's correct or incorrect, so it may be

incorrect, but I can tell you that this is a

public hearing in regards to the Field of Dreams

All-Star Ballpark Heaven.

7
8

Q.

And it may be an incorrect legal

description that was given to the public?

A.

Yes.

10

Q.

But you don't know for sure; that's

11

what you're telling me today?

12

A.

Correct.

13

Q.

The public, you would expect that the

14

public would rely on this legal description,

15

wouldn't you?

16
17
18

A.

I don't know what's the public's intent

of relying or not relying on it.


Q.

If you put this out as a Notice for a

19

Public Hearing, it's for the public to have

20

public notice, isn't it?

21

A.

Correct.

22

Q.

And you're putting them on notice that

23

that is the property that's being rezoned,

24

correct?

25

A.

I didn't put the public on notice.

The

30

1
2
3

city council put the public on notice.


Q.

You're the city administrator for that

city council, right?

A.

Correct.

Q.

And this is a pubic notice put out by

the city council to put the public on notice

about specific property?

A.

Correct.

Q.

And it may or may not be in error;

10

that's what you're telling me?

11

A.

Yes.

12

Q.

I'm going to hand you Petitioners'

13

Exhibit 3.

14

this exhibit.

15
16

A.

Can you turn to the third page of


This is Ordinance 777, correct?

I'm sorry.

Can you repeat the

question, please.

17

Q.

Is this Ordinance 777?

18

A.

No.

19

It's an Affidavit of

Tricia Maiers.

20

Q.

The third page?

21

A.

The third page appears to be an

22
23
24
25

Ordinance No. 777.


Q.

Can you tell me where this document

originated from, Ordinance 777?


A.

City Attorney Marc Casey.

31

Q.

Did you have any input in preparing it?

A.

No.

Q.

Have you reviewed Ordinance 777?

A.

Yes.

Q.

Are you familiar with it?

A.

Somewhat.

Q.

Tell me what you know about it.

A.

It was an ordinance to amend a

scrivener's error that, that had a southeast

10

quarter section and a southwest quarter section

11

that was in error.

12

Q.

So, now you're telling me that

13

Ordinance -- you're agreeing with me now that

14

Ordinance 770 had an error in the legal

15

description?
MR. HENRY:

16

I object.

That's a

17

statement of fact by counsel.

18

question, and it's an inaccurate statement or

19

characterization of his prior testimony.

20
21
22
23
24
25

Q.

It's not a

What is your understanding of the

purpose of Ordinance 777?


A.

It was to correct a scrivener's error

that was created from Ordinance 770.


Q.

And a scrivener's error, what's your

understanding of what the scrivener's error was?

32

A.

There was just a typo in Ordinance 770.

Q.

So, would you agree with me that

Ordinance 770 had an error in the legal

description?

A.

Had a scrivener's error, yes.

Q.

What's your understanding as to what a

scrivener's error is?

A.

Just a typo.

Q.

Who explained to you what a scrivener's

10

error is?

Where did you get that information?

11

A.

That information came from Marc Casey.

12

Q.

I'll hand you Petitioners' Exhibit 4.

13

Do you recognize that document?

14

A.

Yes.

15

Q.

What is it?

16

A.

It's an Affidavit from me in regards to

17

the Building Permit Application by the applicant

18

Go the Distance, LLC.

19
20
21
22
23
24
25

Q.

Who signed the building permit on

behalf of the owner?


A.

That was signed by a representative of

Denise Stillman from Conlon Construction.


Q.

Is Conlon Construction the owner of

this property?
A.

I don't know.

33

1
2
3
4

Q.

What do you know about who owns this

property?
A.

All I know is, it's owned by

Go the Distance, LLC.

Q.

What's that based on?

A.

Based on the Development Agreement.

Q.

Do you know who owns Go the Distance

Baseball?

A.

I don't know.

10

Q.

Has anyone ever made any

11

representations to you about who has authority

12

to speak on behalf of Go the Distance Baseball?

13

A.

Can you repeat the question, please.

14

Q.

Has anyone, any representative of

15

Go the Distance ever told you about who has

16

authority to speak on behalf of Go the Distance?

17

A.

Yes.

18

Q.

Who?

19

A.

Denise Stillman.

20

Q.

What has she told you?

21

A.

She told me that she, along with

22

representative from Conlon Construction, have

23

representation along with the, the engineer for

24

the project from IIW.

25

Q.

When did she tell you that?

34

A.

I don't recall the exact date.

Q.

Was it in writing or verbally?

A.

Verbally.

Q.

Where did she tell you that?

A.

In a phone conversation.

Q.

She didn't produce any documentation to

you to prove that Conlon Construction either had

an ownership interest or had authority to sign

on behalf of the owner?

10

A.

No.

11

Q.

Did you check with anyone to see

12

whether or not you could rely on that

13

representation and accept that this person had

14

authority to sign on behalf of the owner?

15

A.

No.

16

Q.

If you'll just keep Petitioners'

17

Exhibit 4 out.

18

Dyersville zoning regulations discusses Building

19

Permit Applications?

20
21
22

A.

Do you know what section of the

I believe it's Chapter 165 of the city

code.
Q.

And do you follow Chapter 165 when you

23

go through a Building Permit Application

24

process?

25

A.

To the best of my ability.

35

Q.

Can you tell me what that process is.

A.

Not verbally.

3
4

It's outlined in

Chapter 165 in the city code.


Q.

So, when you're presented with a

bidding permit application, what is the next

thing that you do?

A.

I go through the Building Permit

Application in reference to Chapter 165 of the

code.

10

Q.

I'll hand you Petitioners' Exhibit 5.

11

I'll have you go through the process with me.

12

Building Permit Application at 165.37, that's

13

the procedure.

14

Did you go through this process with this

15

particular Building Permit Application?

Can you find that on page 638?

16

A.

Yes.

17

Q.

Tell me what you did.

18

A.

I went through and read Chapter 165.37,

19

outlined it as such, and went through the

20

building permit process.

21

Q.

So, with regard to Number 5 in 165.37,

22

was this Building Permit Application accompanied

23

by a plat drawn to scale showing the actual

24

dimensions of the lot to be built upon, the

25

size, shape and location of the building to be

36

erected and any other such information as may be

necessary to provide for the enforcement of this

chapter?

A.

The outline that was provided as

attached to the building code, I believe, was

the necessary information to, to make that

informed decision.

8
9

Q.

Did it show actual dimensions of the

lot to be built upon?

10

A.

No.

11

Q.

Did it show the size, shape and

12

location of the building to be erected?

13

A.

Yes, I believe so.

14

Q.

Where at?

15

A.

Right here.

16
17

building permit is at.


Q.

Right in the -- where the


(Indicating)

Why don't you circle what you're

18

pointing to that shows the size, shape and

19

location of the building to be erected.

20
21
22

A.

It's the whole map that shows the size,

location of the, of the buildings to be erected.


Q.

Can you tell me how you can determine

23

the size and shape of the building from this

24

plat?

25

A.

We measured it out using GIS

37

information.

Q.

You say "we."

A.

The, the engineer for that project

Who's that?

sized that up.

Q.

You said "we."

A.

We being the engineer for that project

sized those locations up.

Q.

You're the engineer for this project?

A.

No.

10

IIW Engineers was the engineer for

the project.

11

Q.

You just told me that we used GIS.

12

A.

I used GIS in reference to it to verify

13
14
15

the engineer's information that was given to me.


Q.

Is it attached to this Building Permit

Application somewhere?

16

A.

I don't know.

17

Q.

What date did you use GIS to determine

18

the -- I'm sorry.

19

again?

20

A.

21

What did you use GIS for

To verify the information that was

presented to me.

22

Q.

How were you able to do that?

23

A.

We used the location or the engineer's

24

supplied location, and then I field verified

25

that using GIS information.

38

1
2
3

Q.

You field verified it.

So, did you go

to the site?
A.

No.

I field verified it on the

computer and then used the, used the ruler to

verify that information.

6
7

Q.

Can you tell me, then, what the size,

shape and location of the building is?

A.

No.

Q.

How is anyone able to determine by

10

looking at this Building Permit Application what

11

the size, shape and location of the building is?

12

A.

Don't know.

13

Q.

Then how would it pass the proper

14
15

process according to the ordinances?


A.

It had a size and verification based

16

off of the front end of the permit if you use

17

the front setback, the rear setback and the side

18

setbacks of the building footprint that's used

19

for this site, and it was within those

20

parameters that was used and given to the city

21

council for review and consideration.

22
23
24
25

Q.

How can you tell which location on that

lot that building will be?


A.

This is the site plan that was used to

determine that.

39

1
2
3
4
5
6
7

Where does it show on the site plan the

Q.

location of that building?


Just right here where the --

A.

(Indicating)
Circle what you're talking about so we

Q.

make a record here.


The footprint that was used is right

A.

here.

copy of the building permit.

10

This is just a poor description -- poor


The original

building permit would show that.

11

Q.

Would show what?

12

A.

Would show the outline of the property

13
14

that was used.


Q.

Well, right now I'm talking about this

15

specific building.

16

on this drawing where this specific building is

17

that relates to this permit?

18
19
20

A.

How are we able to determine

It's more than one building.

It's

outlined in the key maps of the buildings.


Q.

Does this Building Permit Application

21

indicate that there will be more than one

22

building?

23

A.

Yes.

24

Q.

Where does it indicate that?

25

A.

In the map key.

40

Based on this Building Permit

Q.

Application, how many buildings were proposed to

be built?

A.

sorry.

Q.

Approximately five or more.

No.

I'm

Five.
Five building permits.

So, you don't

require a separate permit application for each

building?

A.

No.

10

Q.

And on the permit application it

11

indicates size of building, total square footage

12

is 187,000; is that correct?

13
14
15

A.

That's what's stated in the Building

Permit Application.
Q.

Were you able to verify that that was

16

what, according to this attached site plan, that

17

that square footage was consistent with this

18

site plan?

19

A.

20
21
22

In relationship with the engineer, I

took the engineer's word for that.


Q.

Did you have a discussion with the

engineer?

23

A.

Yes.

24

Q.

When was that?

25

A.

The date that the building permit was

41

1
2
3
4
5
6
7

filled out.
Q.

And what did he tell you about the

square footage?
A.

He gave me the breakdown of the square

footage of the 187,000 square feet.


Q.

Is that attached to this Building

Permit Application?

A.

No.

Q.

This plat isn't drawn to scale, is it?

10

A.

I don't know.

11

Engineers.

12

Q.

13

He told me that verbally.

It was prepared by IIW

One of the require -- well, there's no

scale to follow on this, on this map, is there?

14

A.

There's a scale to follow on it.

15

Q.

There aren't any specifications

16

attached to this Building Permit Application,

17

are there?

18

A.

19
20

I'm sorry.

Can you repeat the

question.
Q.

There aren't any specifications for the

21

proposed construction attached to this Building

22

Permit Application, are there?

23
24
25

A.
question.
Q.

I'm sorry.

I don't understand your

What do you mean by "specifications"?


What's your understanding as to what a

42

specification is?

A.

I'm sorry.

I don't know what you mean.

Q.

If you're the city administrator

charged with following the ordinances and you

have a requirement that the plan or that the

permit be accompanied by plans and

specifications for proposed construction, how

are you able to determine whether or not this

permit meets the requirements of the city code?

10
11
12
13
14

A.

The building permit shows that the type

of construction that was used would be wood.


Q.

You're telling me you don't know what a

specification is?
A.

I'm not telling you that.

I don't

15

understand what your question is, is what I'm

16

telling you.

17

Q.

How do you interpret this code

18

requirement that this Building Permit

19

Application be accompanied by plans and

20

specifications?

21

A.

What does that mean to you?

It means the building permit, being the

22

type of construction being filled out along with

23

questions that were asked in reference to the

24

Building Permit Application, the type of

25

construction, the type of -- size of the

43

building, total square footage, basement,

whether it has an extinguishing system or not

and the number of stories that are related to

it.

5
6
7
8
9

Q.
by.

The code says it has to be accompanied

What does that mean to you?


A.

It means if it's outlined into the

Building Permit Application.


Q.

So, being accompanied by plans and

10

specifications, doesn't that mean it has to be

11

attached to it?

12

A.

Not necessarily.

13

Q.

So, you didn't require this agent to

14

submit evidence that they had authority to sign

15

this building permit?

16

A.

No.

17

Q.

Were any of the proposed site plan

18

drawings, were they located in flood-prone

19

areas?

20

A.

Maybe.

21

Q.

Wouldn't you have had to determine that

22

to see whether or not an application for a

23

building permit met the procedure under the

24

code?

25

A.

I think a floodplain development permit

44

was taken out.

Q.

So, it was in a flood-prone area?

A.

Certain section may have been in the

4
5

flood-prone area.
Q.

So, did you require this permit to be

accompanied by elevations in relation to mean

sea level of the lowest habitable floor,

including basement?

9
10
11

A.

A floodplain development permit was

taken out with accompanied information.


Q.

So, according to your review at least

12

of the city ordinances, this building permit met

13

the requirements?

14

A.

Correct.

15

Q.

The value of the work indicated on this

16
17
18
19
20
21
22
23
24
25

building permit was 38 million; is that correct?


A.

That's what the Building Permit

Application stated, was 38 million.


Q.

And, again, under number of stories it

indicates three?
A.

In Building Permit Application 13-1575

it indicates three stories.


Q.

And Zoning District indicates C-2; is

that correct?
A.

Correct.

45

Q.

Now, in this proposed area, a portion

of this property actually at the time the

building permit was submitted was not zoned C-2,

was it?

A.

I don't know.

It was zoned C-2

conditional use at the time that this building

permit was taken out.

8
9

Q.

A portion of the property where this

building permit proposes to do commercial

10

development was actually zoned A-1 at the time,

11

wasn't it?

12

A.

Not to my knowledge.

13

Q.

I'm going to hand you, I think we're on

14

Petitioners' 6 now.

15

Petitioners' 6.

I'm going to hand you

Do you recognize that document?

16

A.

Can you repeat the question, please.

17

Q.

Do you recognize this document?

18

A.

It's an Affidavit of Mick Michel.

19

Q.

And the Affidavit has some attachments?

20

A.

Yes.

21

Q.

What are they?

22

A.

It has a Press Statement by Residential

23

& Agricultural Advisory Committee, LLC, RAAC, in

24

quotations, R-A-A-C, in quotations, shows

25

Ordinance 770 and the Public Notice of Ordinance

46

770 along with a map of a legal description

zoned from A-1 to C-2.

3
4

Q.

Have you had a chance to review this

document before today?

A.

No.

Q.

Did you prepare this Affidavit?

A.

Yes.

Q.

Did you review it before you signed it?

A.

Yes.

10

Q.

So, you have reviewed this before

11

today?

12

A.

Yes.

13

Q.

And you've reviewed the attachments

14
15
16
17

I prepared it on June 7, 2013.

before today, right?


A.

Yes, at the time that the Affidavit was

prepared.
Q.

So, what is your understanding as to

18

what these attachments are?

19

know about them.

20

A.

Tell me what you

It's a Press Statement that was given

21

to the city council at a council meeting along

22

with Ordinance 770, a public hearing notice,

23

along with an uncertified or unsigned land

24

surveyor showing a map of a legal description

25

rezoned from A-1 to C-2.

47

Q.

At the time you received this, were you

able to verify whether or not the information in

here was accurate?

A.

No.

Q.

Let's go to the last page of this

surveyor's map.

Since the time you were

presented with this material, were you able to

verify whether or not this legal description

presented by a surveyor was accurate?

10

A.

Can you repeat the question, please.

11

Q.

Since the time you received this

12

document, were you able to determine whether or

13

not this survey that was provided by the

14

surveyor was accurate with regard to how the

15

legal description was mapped out?

16
17
18

A.

I'm sorry.

I don't understand your

question.
Q.

Did you have an opportunity after you

19

were presented with this to verify whether or

20

not this information was true?

21
22
23

A.

I referred it to our city attorney for

review.
Q.

So, the evening that you received this

24

and had it in your hands, what actions did you

25

take?

48

A.

I did not receive it that night.

Q.

You didn't receive a copy of this --

A.

No.

Q.

-- the night of the city council

5
6
7

meeting?
A.

No.

The city council, along with the

city clerk, received a copy of it.

Q.

And you never got a copy yourself?

A.

No.

10

Q.

Did you take any action the evening

11

that the city council was presented with this to

12

look at the legal description?

13

A.

No.

14

Q.

So, at no time did you look at the

15

legal description that was in Ordinance 770

16

after you received this?

17

A.

No.

18

Q.

Did you make any statements to the

19

council the night that this was received by the

20

council with regard to this legal description?

21

A.

Maybe.

22

Q.

What do you remember?

23

A.

I don't recall.

24
25

You'd have to look at

the tape.
Q.

Did you make any representation to the

49

council or recommendation about what to do in

light of the information that they received that

night?

A.

5
6
7

the tape.
Q.

I don't know.

You'd have to look at

That's a public record.


And you don't remember any statements

that you would have made to the council?

A.

I don't know.

Q.

If, for a moment, we accept the last

10

page of this as true and you look at your

11

Building Permit Application attached to

12

Exhibit 4, the last page of the site plan,

13

according to what was represented to the council

14

when this press release was provided, a portion

15

of the proposed property where the development

16

was to take place was zoned A-1; is that

17

correct?

18
19
20

A.
question.
Q.

I'm sorry.

Can you rephrase your

I don't understand it.


Okay.

If you take Petitioners'

21

Exhibit 6, the last page, if you accept that as

22

being the accurate platting of the legal

23

description of Ordinance 770, --

24

A.

Okay.

25

Q.

-- there is a section which is a

50

southeast quarter of the southeast quarter of

Section 22 that remains zoned A-1?

A.

Okay.

Q.

If you take that as true and you look

at the Building Permit Application that was

before the council that evening, there's a

portion of the property on the building permit

where a proposed commercial development was to

take place that was currently zoned A-1 if you

10

accept this as true; is that right?

11

A.

No.

12

Q.

Why not?

13

A.

I don't accept this as true because

14

that wasn't the legislative intent of the city

15

council.

16

Q.

What was the legislative intent of the

17

city council?

18

legislative intent of the city council was?

19
20
21

A.

And how do you know what the

Exhibit 2 shows the rezoning of the map

that's indicated.
Q.

Right now you're looking at

22

Petitioners' Exhibit 2, and you're looking at a

23

map titled Rezoning Request, Field of Dreams

24

Property, A-1 to C-2 Conditional Use; is that

25

correct?

Is that correct?

51

A.

That's correct.

Q.

Now, tell me --

A.

The other piece was, if you go back to

the conditional use, the conditional use was

for, under Section 2, was that the rezoning is

conditional for the preservation of the existing

farmhouse with the wraparound porch overlooking

the existing Field of Dreams, preservation of

the existing Field of Dreams, and the creation

10

of the construction of an All-Star Ballpark

11

Heaven complex featuring 24 baseball and

12

softball fields targeted for competition and

13

training for youth ages 8 to 14 and incidental

14

uses thereof.

15

legislative intent of the city council.

16

Q.

Those two pieces was the

So, you're saying that because the

17

legislative intent of the city council was that

18

this be zoned commercial, that that's what we

19

should follow?

20

reasoning is.

I'm not understanding what your

21

A.

I'm just answering your question.

22

Q.

If you accept this map as true, is this

23

parcel designated the southeast quarter of the

24

southeast quarter of Section 22, is that zoned

25

A-1?

52

1
2

A.

I don't know.

Can you answer --

rephrase your question, please.

Q.

Sure.

A.

I don't understand it.

Q.

According to Ordinance 770, if you map

out the legal description and you accept this as

true, that this is what rezoned from A-1 to C-2,

if you accept that as true, then this parcel

right here is still zoned A-1?

10

A.

Not necessarily.

11

Q.

Why not?

12

A.

Because that's not the legislative

13
14
15
16

intent of the city council.


Q.

That's what the legal description said,

though, you don't dispute that, do you?


A.

The, the legal description as outlined

17

in 770 is what -- the legal description, but

18

that wasn't the legislative intent of the city

19

council.

20
21

Q.

said, wasn't it?


MR. HENRY:

22
23
24
25

But that's what the legal description

I object.

Asked and

I object.

Asked and

answered.
Q.

Yes or no?
MR. HENRY:

53

answered.

MS. HESS:

MR. HENRY:

He can still answer.


He has answered it,

and he can't be compelled to give a yes or no

answer where that's not an accurate answer.


MS. HESS:

6
7

answer it yes or no.


MR. HENRY:

8
9

Q.

11

770 --

The legal description in Ordinance

MR. HENRY:

12

This is

argumentative.

14

MS. HESS:

15

MR. HENRY:

16

MS. HESS:

17

He doesn't feel that

he can.

10

13

Certainly he can

Q.

I'm asking a question.


You're arguing.
I'm asking a question.

The legal description in Ordinance 770,

18

if you map it out on a plat map, is that what it

19

looks like on Exhibit 6, the last page?

20

A.

I don't know.

21

Q.

If you accept the legal description in

22

Ordinance 770 as mapped out in the last page of

23

Petitioners' Exhibit 6, if you accept that as

24

true, just going by the legal description now,

25

not the legislative intent, if you accept this

54

as true, then southeast quarter of the southeast

quarter of Section 22 is still zoned A-1; is

that -MR. HENRY:

I object.

Calls for

assumption of hypothetical facts that are

incomplete and substantially inaccurate, and

it's already, it's been asked and answered

several times.

that this witness is not competent to make.

It calls for a legal conclusion

10

Calls for an engineering conclusion, opinion and

11

conclusion that this witness is not, has already

12

said he's not competent to make.

13

repetitive and argumentative.


MS. HESS:

14
15

Are you instructing

him not to answer?


MR. HENRY:

16
17

And it's

Q.

Yes.

Mr. Michel, you took this press release

18

and you took -- the city council took action

19

after they received this, didn't they?

20
21

A.

I don't know.

You'd have to look at

the council minutes.

22

Q.

Who drafted Ordinance 777?

23

A.

City Attorney Marc Casey.

24

Q.

At whose direction?

25

A.

At my direction per the city council's

55

direction to look into the matter.

Q.

Who in the city council gave you

direction to give to Marc Casey about

Ordinance 777?

A.

Mayor Heavens.

Q.

Anyone else?

A.

Not that I recall.

Q.

What direction did Mayor Heavens give

10

A.

Is to look into the matter.

11

Q.

All he said was to look into the

12
13
14

you?

matter, and then what did you do?


A.

I forwarded to the City Attorney

Marc Casey for review.

15

Q.

Did you prepare Ordinance 777?

16

A.

No.

17

Q.

Did you have any input in it at all?

18

A.

No.

19

Q.

Did you look at any of these legal

20

descriptions at any time after you received that

21

press release?

22

A.

No.

23

Q.

Did you have any meetings with

24
25

Marc Casey about Ordinance 777?


A.

One phone call.

56

1
2
3

Q.

What was discussed during the phone

call?
A.

We discussed on -- his review upon the

Ordinance 770 and the legal description, and he

came to the conclusion that that was a

scrivener's error.

Q.

When did that phone call take place?

A.

I don't know.

Q.

Did you have a meeting with

10

Attorney Casey following the city council

11

meeting after the press release was presented?

12

A.

I don't know.

13

Q.

Did you have a phone conversation with

14

Denise Stillman after the press release was

15

presented to the city council?

16

A.

I don't recall.

17

Q.

Is it possible that you did?

18

A.

Maybe.

19

Q.

Did you have a meeting with

20

Denise Stillman after the press release was

21

presented to the city council?

22

A.

Not that I'm aware of.

23

Q.

If you had a calendar, would that

24

indicate whether you had any meetings with

25

Denise Stillman?

57

A.

If it's outlined in the calendar, yes.

Q.

Can you tell me about all in-person

meetings that you had with Denise Stillman?


MR. HENRY:

4
5

overbroad.

Q.

Object.

It's

Tell me what you remember about any

meeting that you had with Denise Stillman in

person.
MR. HENRY:

9
10

Q.

Same objection.

You can answer the question.


MR. HENRY:

11

Counsel, if you'd

12

limit it to a subject matter, he could make

13

progress.
MS. HESS:

14
15

I want to know about

any meeting that he had with Denise Stillman.


MR. HENRY:

16

In that case, it's

17

overbroad.

18

Q.

You can answer the question.

19

A.

I don't know.

20

Q.

You don't know about any --

21

A.

I don't understand your question.

22

Q.

I want to know about any in-person

23
24
25

meeting that you had with Denise Stillman.


MR. HENRY:
subject, Counsel?

At any time about any

Is that your question?

58

Q.

Yes, at any time about any subject.


MR. HENRY:

2
3
4

Then in that case

it's overbroad.
Q.

Go ahead and answer.


MR. HENRY:

I think I'm going to

instruct the witness not to answer because it is

overbroad.

calculated to lead to admissible evidence in

this case regarding the issues remaining in this

10
11

It's burdensome, not reasonably

case.
Q.

I want to know about all in-person

12

meetings that you had with Denise Stillman with

13

regard to Ordinance 770.

14

A.

None that I recall.

15

Q.

Did you have any in-person meetings

16

with Denise Stillman about Ordinance 777 or any

17

subject related to that?

18

A.

I don't understand your question.

19

Q.

Did you have an in-person meeting with

20

Denise Stillman with regard to Ordinance 777?

21

A.

Not that I recall.

22

Q.

What didn't you understand about my

23
24
25

question, an in-person meeting?


A.

I don't understand your question.

is your question?

What

59

Q.

I want to know about meetings that you

had with Denise Stillman about these ordinances,

in-person meetings.
MR. HENRY:

Asked and answered.

A.

I answered your question.

Q.

You don't recall, you don't recall

having a meeting or you don't recall -- it's

possible that you had a meeting and you don't

recall it?

10

A.

I'm sorry.

What is your question?

11

Q.

I want to know what you don't recall.

12

You don't recall whether you had a meeting or

13

what happened at the meeting?

14

that you had meetings?

15
16
17
18

A.

Is it possible

I don't recall having a meeting with

Denise Stillman.
Q.

Did you have a phone conversation with

Denise Stillman about Ordinance 777?

19

A.

Not that I recall.

20

Q.

Did you have an in-person meeting with

21

Denise Stillman about the Building Permit

22

Application?

23

A.

Not that I recall.

24

Q.

Did you have a phone conversation with

25

Denise Stillman about the Building Permit

60

Application?

A.

Yes.

Q.

When was the phone conversation?

A.

I think it took place on April 9, 2013.

Q.

At what time?

A.

I don't know.

Q.

What did you discuss?

A.

On the signature of the Building Permit

Application.

10

Q.

Anything else?

11

A.

No.

12

Q.

You had no other discussions with her?

13

A.

No.

14

Q.

Did you talk with Denise Stillman prior

15
16

to your deposition today?


A.

No.

Let me rephrase that.

Maybe.

In

17

the time frame between the time that she first

18

came to Dyersville, maybe I have had a

19

conversation with her.

20
21

Q.

Did you have any meetings with any city

council members about Ordinance 770?

22

A.

No.

23

Q.

Did you have any phone conversations

24
25

with city council members?


A.

No.

61

Q.

Any city council member?

A.

No.

Q.

Or the mayor?

A.

No.

Q.

Did you have any meetings with any city

council member about Ordinance 770?

A.

No.

Q.

Did you have any meetings with the

mayor about Ordinance 770?

10

A.

No.

11

Q.

I'll hand you Petitioners' Exhibit 7.

12
13
14
15

Can you tell me what that is?


A.

There are two Affidavits that were

signed by me on June 7th, 2013.


Q.

And you certified under penalty of

16

perjury and pursuant to the laws of the State of

17

Iowa that this Affidavit was true and correct,

18

didn't you?

19
20
21

A.

That Affidavit is, both Affidavits are

correct.
Q.

In fact, in this Affidavit you said, in

22

the second paragraph now, third sentence:

Upon

23

notice, I, meaning Mick Michel, confirmed that

24

there was an error in the legal description on

25

Ordinance 770.

62

Is that what you put in your

1
2

affidavit?

A.

Did I read that correctly?

I'm sorry.

Can you -- I don't

understand your question.

it again, please.

6
7

Q.

Can you, can you ask

This is your Affidavit, isn't it,

Mr. Michel?

A.

Yes.

Q.

You prepared this under oath?

10

A.

Yes.

11

Q.

And you said in this Affidavit, and I'm

12

in the second paragraph, the third sentence.


MR. HENRY:

13

Counsel, that's the

14

second time you referred to the second

15

paragraph, the third sentence.

16

paragraph starts on page 1.

17

Q.

I'm on page 2.
MR. HENRY:

18
19
20
21
22
23

The second

Do you mean something

else?
Q.

Page 2.

Second paragraph, third

sentence.
A.

I'm sorry.

I don't understand.

Show

me what you're talking about.

24

Q.

Mr. Michel, I'm on page 2, correct?

25

A.

Sure.

Uh-huh.

63

1
2

Q.

And right now we're talking about

Petitioners' Exhibit 7, correct?

A.

Yes.

Q.

Second paragraph.

Can you find the

third sentence in that paragraph of your

Affidavit.

A.

Okay.

Q.

Can you find that?

Thank you.
Let me know when

you're there.

10

A.

Yes.

11

Q.

Follow along with me while I read out

12

loud.

13

A.

Sure.

14

Q.

You indicated you didn't understand my

15

question, so I'm going to reask it.

Okay?

16

A.

Sure.

17

Q.

Upon notice, I, meaning Mick Michel,

18

right?

19

A.

Correct.

20

Q.

Confirmed that there was an error in

Is that right?

21

the legal description on Ordinance 770.

22

read that correctly?

Did I

23

A.

Yes, you did.

24

Q.

So, you made this statement under oath?

25

A.

Yep.

64

Q.

That you confirmed that there was an

error in legal description on Ordinance 770,

correct?

A.

Yes.

Q.

So, you would agree with me that you

confirmed on that evening that there was an

error in the legal description on Ordinance 770?


MR. HENRY:

8
9

Counsel, that's not

what it says.

10

A.

No.

11

Q.

Did I read that incorrectly,

12

Mr. Michel?

13

A.

I don't understand your question.

14

Q.

Did I, did I read your Affidavit

15

exactly how it was typed?

16

A.

On the third sentence, yes.

17

Q.

Now, based on that, your Affidavit

18

doesn't say that Marc Casey confirmed there was

19

an error in the legal description, does it?

20

A.

No.

21

Q.

Let's go down to the middle of that

22

paragraph about that starts with the sentence I

23

concluded.

24

A.

Okay.

25

Q.

You want to follow along while I read

Let me know when you find it.

65

aloud.

A.

Sure.

Q.

Let me know if I read something

incorrectly.

"I concluded that the mistake in

Ordinance 770 was a scrivener's error, and it

was determined that a corrective ordinance was

necessary."

Did I read that correctly?

A.

Correct.

Q.

So, it wasn't Marc Casey that concluded

10

it was a scrivener's error, was it?


MR. HENRY:

11

I object.

That's not

12

what it says, Counsel.

13

anything about the basis for his conclusion, so

14

the method of his confirmation in either of

15

these two sentences.


MS. HESS:

16
17

You haven't asked him

This is contradictory

testimony from what he previously -MR. HENRY:

18

It is not

19

contradictory testimony from what he previously

20

testified.

21

adding words as you ask your questions.

22

unfair in form.

You're selectively reading and then


It's

Mr. Michel, did I read that sentence

23

Q.

24

correctly?

25

A.

You read the sentence correctly.

66

Q.

You concluded it was a scrivener's

error; isn't that what you said in that

Affidavit?

A.

After my conversation with Marc Casey.

Q.

Well, that's not what it says in your

Affidavit, is it?

A.

Yeah, it does say that in my Affidavit.

Q.

"I concluded that the mistake in

Ordinance 770 was a scrivener's error."

10

A.

That's correct.

11

Q.

You didn't say after my conversation

12

with Marc Casey.

13

says, is it?

That's not what your Affidavit

14

A.

I disagree with that.

15

Q.

Where in your Affidavit does it say

16

that you concluded the mistake in Ordinance 770

17

was a scrivener's error after you talked with

18

Marc Casey?

19

A.

It doesn't say that.

20

Q.

Okay.

21

A.

But that was the basis of my

22
23

conclusion.
Q.

Mr. Michel, is it your understanding

24

that during a city counsel meeting, if a concern

25

is brought up by a citizen of Dyersville, that

67

that's something the city council should

consider?

A.

again.

Q.

I'm sorry.

Can you ask the question

When the citizens of Dyersville stand

up and make public comment to the council, would

you expect that the city council would take

those comments and concerns into consideration?

A.

Possibly, yes.

10

Q.

Are you ever involved in investigating

11

any of those concerns that are raised by

12

citizens?
Not normally.

13

A.

14

situation.

15

Q.

It just depends on the

With regard to this building permit and

16

the proposed project on the Field of Dreams

17

property, did you ever have any discussion with

18

Denise Stillman or anyone from Go the Distance

19

about an alternate location for the project?

20

A.

Not that I recall.

21

Q.

Is it possible that you could have and

22

you just don't remember?

23

A.

Maybe.

24

Q.

Did you ever have a meeting with

25

someone other than Denise Stillman or anyone

68

from Go the Distance about this project being

located at an alternate location?


MR. HENRY:

I object.

It's

beyond the scope of the issues remaining in this

case.
MS. HESS:

6
7

building permit.
MR. HENRY:

8
9
10

It has to do with the

It doesn't have to do

with the issues remaining in this case, which


are the approval of the building permit.

11

Q.

Go ahead and answer the question.

12

A.

I'm sorry.

13

again.

14

Q.

Can you ask the question

I'll have it read back.


(Question read)

15
16

A.

Not that I recall.

17

Q.

Have you ever had a meeting or a

18

conversation with anyone about offering

19

Go the Distance an opportunity to hold their

20

activities at some alternate location?

21

A.

Not that I'm aware of.

22

Q.

Are you familiar with the Comprehensive

23

Plan of Dyersville?

24

A.

Somewhat, yes.

25

Q.

And what is your understanding as to

69

what is currently in place for the

Comprehensive Plan?
MR. HENRY:

3
4

overbroad.

Q.

I object.

It's

It's so broad as to defy answer.

You can answer if you know what your

understanding is as to what is currently in

place for the Comprehensive Plan in Dyersville.


MR. HENRY:

8
9

is.

It calls for incompetent, irrelevant

10

testimony.

11

Q.

12

The plan is what it

Mr. Michel, as city administrator are

you familiar with a Comprehensive Plan?

13

A.

Somewhat, yes.

14

Q.

Does Dyersville have one?

15

A.

Yes.

16

Q.

What's the date of the

17

Comprehensive Plan currently in place in

18

Dyersville?

19
20
21
22

A.

I believe it's 1963 and supplementals

attached to it.
Q.

Are you familiar with the Comprehensive

Plan?
MR. HENRY:

23

Asked and answered.

24

A.

Somewhat, yes.

25

Q.

Does the Comprehensive Plan call for a

70

project such as the one attached to that

building permit in that location?

A.

I don't know.

Q.

Tell me what you do know about the

Comprehensive Plan with regard to commercial

development.

7
8

A.

Comprehensive Plan.

9
10
11
12

It's outlined in the

Q.

I want to know what your understanding

A.

I don't have the Comprehensive Plan in

is.

front of me.
MR. HENRY:

13

This is far beyond

14

the scope of the issues remaining in this case,

15

Counsel.
MS. HESS:

16
17

It has to do with the

building permit --

18

MR. HENRY:

19

MS. HESS:

No, it doesn't.
-- and the project

20

that's attached to that building permit.

21

certainly does.
MR. HENRY:

22

No.

It

The building

23

permit has to do with the application that was

24

submitted and the compliance of the application

25

with the code.

There's nowhere in that code

71

that says anybody on behalf of the city has the

right to second-guess the developer's plans or

direct the developers to go to another location

or -- it just doesn't happen.

code.

It's not in the

They don't have that authority.


MS. HESS:

He hasn't told me

that.

what his role is as city administrator.

are his answers.

10

You're now giving him testimony as to

If that's not his role, then

he needs to tell me.


MR. HENRY:

11

You've said that this

12

is relevant to the building permit.

13

explaining to you why it is not.


MS. HESS:

14
15

These

I'm

Are you asking him not

to answer the question?


MR. HENRY:

16

I'm suggesting that

17

you should tailor your questions to the issues

18

remaining in this lawsuit.


MS. HESS:

19
20

objection?
MR. HENRY:

21
22

25

No.

I just answered

your question.
MS. HESS:

23
24

Is that your

Then I'll have the

witness answer the question.


A.

Can you ask the question again, please.

72

MS. HESS:

1
2

please, Christal.
(Question read)

3
4
5
6

Can you read it back,

A.

I believe I answered my question --

your question.
Q.

Excuse me.

Do you know if any work or construction

has been done pursuant to that building permit

that you issued?

A.

I don't know.

10

Q.

When was the last time you were at that

11

location?

12

A.

I don't recall.

13

Q.

You don't remember the last time you

14

went to the All-Star, proposed All-Star Ballpark

15

Heaven location?

16

A.

No, I don't recall.

17

Q.

Was it in the last six months?

18

A.

I don't recall.

19

Q.

Would your calendar indicate whether or

20
21

not you were at that location?


A.

Maybe.

22

MR. MICHEL:

23

MR. HENRY:

24

MS. HESS:

25

(Recess)

Can we take a break?


Sure.
Yes, that's fine.

73

EXAMINATION

1
2
3

BY MS. HESS:
Q.

(Continued)

Mr. Michel, if you'll pull out the

Building Permit Application, which is, I

believe, Petitioners' Exhibit 4.

that in front of you?

Do you have

A.

Yes.

Q.

Under the Zoning District, which is on

the first page of the Building Permit

10

Application or the third page of this exhibit,

11

is that designated C-2?

12

A.

Yes.

13

Q.

Is that something that you review when

14

you issue Building Permit Applications, whether

15

or not it's in the appropriately-zoned district?

16

A.

Yes.

17

Q.

Why is that important?

18

A.

Because it guides the setback

19
20

requirements under the city code.


Q.

And what would happen if the building

21

permit was, Building Permit Application had a

22

Zoning District in it that was inconsistent with

23

what was proposed to be built?

24
25

A.
question.

I'm sorry.

I don't understand your

74

Q.

Well, let me ask it a different way.

If this Zoning District on this particular

application said A-1, --

A.

Uh-huh.

Q.

-- would you have granted this

Building Permit Application for this proposed

building in an A-1 district?

8
9
10

A.

It depends on the outline of the, of

the city code under A-1 condition.


Q.

So, you don't know, as you sit here,

11

without looking at the code, if this particular

12

Building Permit Application called for this site

13

plan to be built in an A-1 district, would that

14

have been rejected?

15

A.

Most likely not.

16

Q.

Most likely not?

17

A.

Correct.

18
19

From the setback requirements

that I've seen here.


Q.

Can you find me -- do you have the

20

Dyersville zoning regulations over there

21

somewhere?

22

A.

Is that the complete zoning regulation?

23

Q.

Are you familiar with the zoning

24

regulations with regard to the Zoning Districts

25

and the definitions of each Zoning District?

75

1
2
3
4
5

Are you familiar with those?


A.

I'm sorry.

I don't understand your

question.
Q.

Are you familiar with these zoning

regulations?

A.

Under Chapter 165, yes.

Q.

And what are the A-1 Zoning District

8
9

regulations?
A.

It's outlined under Section 165.2 under

10

the city code, of the city code, excuse me, of

11

the city code.

12

Q.

So, Building Permit Application 13-1575

13

and the attached site plan would be permissible

14

in an A-1 district according to your

15

interpretation of the code?

16

A.

I said that the setback requirements

17

would be permissible.

18

in is whether it would be a permitted principal

19

use or not if the zoning code was under A-1.

20

Q.

The question would come

And based on what you know about what

21

the principal use of the property was for this

22

Building Permit Application, would that be

23

allowed in an A-1 district?

24
25

A.

Most likely not under the permitted

principal uses section.

76

Q.

Based on that, your review of the

zoning regulations, if this Building Permit

Application in this form would have been

presented to you for an A-1 Zoning District,

would that have been denied?

6
7
8
9
10

A.

I'm sorry.

I don't understand your

question.
Q.

Based on your review of the Dyersville

zoning regulations with regard to permitted


principal uses and structures for A-1, --

11

A.

Uh-huh.

12

Q.

-- if you got a Building Permit

13

Application 13-1575 and the Zoning District had

14

been A-1 --

15

A.

That would most likely been denied.

16

Q.

What is your understanding as to what a

17

Comprehensive Plan is used for?

18

A.

It's a planning document.

19

Q.

What is it used for?

20

A.

I'm sorry.

21

I don't understand your

question.

22

Q.

What is a Comprehensive Plan used for?

23

A.

It's a planning document.

24

Q.

So, it's used for planning?

25

A.

For planning purposes.

77

Q.

For future development in Dyersville?

A.

It's a planning document.

an answer.

Q.

I gave you

And I believe you told me that your

understanding was the current Comprehensive Plan

in place was the 1963 and supplemental

attachments?

A.

Correct.

Q.

I'm going to hand you Petitioners'

10

Exhibit 8.

11

A.

12
13

Are you familiar with that document?

It shows that it's a Comprehensive Plan

for Dyersville, and it has a date of '61 or '62.


Q.

When you referred earlier to the 1963

14

plan, is this the plan that you were talking

15

about, or is there, in fact, a

16

Comprehensive Plan titled 1963?

17

A.

Not that I recall.

18

Q.

And you said --

19

A.

This is just a piece of it.

20

Q.

So, it's your understanding that

21

there's more to this Comprehensive Plan than

22

what's represented in Petitioners' Exhibit 8?

23

A.

Maybe, yes.

24

Q.

I'm going to hand you Petitioners'

25

Exhibits 9, 10, 11 and 12.

I'll have you look

78

at those documents.

Tell me once you've had a

chance to review those.

to review those?

Have you had a chance

A.

Somewhat, yes.

Q.

You told me earlier that your

understanding of what was currently in place for

a Comprehensive Plan was a 1963 and supplemental

attachments.

Based on your --

A.

It's actually '61 or '62.

10

Q.

So, you misspoke earlier?

11

A.

I was answering to the best of my

12
13

ability.
Q.

And now that you've reviewed that, you

14

agree that it's the '61 through '62

15

Comprehensive Plan and supplemental attachments?

16

A.

Yes, but this isn't the complete plan.

17

Q.

Well, have you had an opportunity to

18

review, at least cursory, the Petitioners'

19

Exhibits 8, 9, 10, 11 and 12?

20

A.

Yes.

And it's missing pages.

21

Q.

Other than those plans that you have

22

reviewed and the missing pages that you say are

23

not in there, are there any other Comprehensive

24

Plans that are applicable to the City of

25

Dyersville?

79

1
2
3

A.

I'm sorry.

I don't understand your

question.
Q.

Other than the documents you've

reviewed here and any other missing pages from

these plans, are there any other plans that are

applicable to the City of Dyersville with regard

to a Comprehensive Plan?
These are the active Comprehensive Plan

A.

documents.

10
11
12

Q.

So, what I've put in front of you are

all the active Comprehensive Plan documents?


A.

I'm not sure, but these are the ones

13

that are part of the Comprehensive Plan.

14

might be a section missing, I'm not sure.

15

have to go back and verify.

16

Q.

There
I'd

Do you know of any other plans that I

17

didn't give you that are applicable to the City

18

of Dyersville?

19

A.

I don't know.

20

Q.

If you review Petitioners' Exhibit 12,

21

is that the most recent supplement to the

22

Comprehensive Plan?

23

A.

Maybe.

24

Q.

The City of Dyersville Community

25

Builder Plan dated 1997?

80

A.

Maybe.

Q.

Based on what you know, is that the

most recent?

A.

Could be.

Q.

Do you know of any more recent?

A.

I don't know.

From what you're showing

me, it seems reasonable that that's the

Comprehensive Plan.

There may be another

document out there.

I'm not sure.

10

Q.

If there is another document out there

11

that applies to the Comprehensive Plan of the

12

City of Dyersville, you aren't aware of it?

13
14
15

A.

I'm just show -- tell -- documenting

what is here in front of me.


Q.

I want to know from you what the most

16

recent -- if I'm missing a supplement, I want to

17

know.

18

A.

19

office.

20

question.

21

Q.

I don't know without verifying at the


I don't know the answer to your

So, as you sit here right now, you

22

don't know if there are any other

23

Comprehensive Plans applicable to the City of

24

Dyersville?

25

A.

That's correct.

81

1
2

Q.

If you look at the 1997 Community

Builder Plan on page 11 --

A.

I'm sorry.

Q.

Eleven.

What page?

If you follow along with me

under Objective C close to the top of the page,

do you see where I'm reading?

allow for continued growth and development near

US 20 and along Iowa 136.

correctly?

Objective C is to

Did I read that

10

A.

That's what it states.

11

Q.

And the strategy was to, Strategy

12

Number 1 for that objective was to encourage

13

businesses that require a large amount of space

14

and parking to develop along the highway.

15

read that correctly?

16

A.

That's what the strategy says.

17

Q.

And Strategy 2 was to ensure that

Did I

18

adequate land and infrastructure are available

19

to develop along the highway.

20

correctly?

21

A.

That's what the strategy says.

22

Q.

And that's in the most recent Community

23
24
25

Did I read that

Builder Plan in 1997?


A.

I don't, I don't know.

From what

you're showing me, that's what's in the 1997

82

1
2
3
4

Community Builder Plan.


Q.

Do you dispute the authenticity of

this?
A.

No.

I just can't testify anything more

than what's in front of me, because I don't have

an answer for you.

Q.

But you would tell me if you knew of

some other Comprehensive Plan I haven't provided

to you?

10

A.

Yes, I would.

11

Q.

Mr. Michel, are you affiliated with any

12

organizations, professional organizations or

13

associations?

14

A.

Lions Club.

15

Q.

Anything else?

16

A.

Iowa City Managers Association,

17

International City Managers Association.

18

the small city representative for Dubuque County

19

for the RPA 8 District.

20

Q.

RPA?

21

A.

RPA.

22

Q.

What's that?

23

A.

Regional Planning Affiliation.

I'm

And I

24

sit for the City of Dyersville on a -- the Smart

25

Planning and Zoning Committee.

83

1
2
3
4
5
6

Q.

Are you a member of any other

organization, or do you sit on any boards?


A.

No.

I'm a -- I go to -- I'm a member

of the Basilica of St. Francis Xavier.


Q.

You don't sit on any other boards,

though?

A.

No.

Q.

Are you familiar with Dyersville

Industries, Incorporated?

10

A.

Yes.

11

Q.

Do you have any affiliation with that

12
13

organization?
A.

Under the city administrator's code

14

section I am the liaison person for the City of

15

Dyersville.

16

Q.

So, you are affiliated with that board?

17

A.

No.

18

Q.

What do you --

19

A.

I just sit on behalf of the City of

20

Just a liaison representative.

Dyersville.

21

Q.

You actually attend the board meetings?

22

A.

I attend the board meetings, yes.

23

Q.

And as a liaison what is your job or

24

your role?

25

A.

My role is to attend those meetings.

84

1
2
3

I'm not an active board member.


Q.

Do you offer any input during board

meetings?

A.

Only when asked.

Q.

Have you been asked about this project,

this Field of Dreams development project in your

role as liaison?

A.

Possibly, yes.

Q.

What have you been asked?

10

A.

I don't -MR. HENRY:

11

I object.

This is

12

continuing to wander far beyond the scope of the

13

building permit, floodplain permit that are the

14

only issues remaining in this case.


MS. HESS:

15
16

What was the last

question?
(Question read)

17
18

Q.

Go ahead and finish your answer.

19

A.

I'm sorry.

20

again?

21

Q.

What have you been asked?

22

A.

I don't know.

23

Q.

You don't recall any specific --

24

A.

I don't recall.

25

Q.

In your role as liaison with Dyersville

What was your question

85

Industries, Incorporated, have you had meetings

with anyone with regard to the site plan

attached to that Building Permit Application in

your role as liaison?

A.

Can you ask the question again, please.

Q.

In your role as liaison with Dyersville

Industries, Incorporated, have you had any

meetings with anyone outside the board meetings

with regard to anything attached to that

10

Building Permit Application, anything with

11

regard to that project?

12

A.

Not that I recall.

13

Q.

Did you have any telephone

14

conversations with anyone in your role as

15

liaison?

16

A.

Not that I recall.

17

Q.

Are you affiliated with any other

18

association or board that you haven't already

19

told me about?

20
21
22
23
24
25

A.

To the best of my knowledge, what I

told you is what it is.


Q.

I'll hand you 13.

I'd ask you to

identify that document.


A.

It's an Affidavit from me in regards to

the use of public utilities on right-of-way and

86

Excavation Permit for Go the Distance, LLC.

Q.

Attached to that Affidavit is there a

copy of the Application for Use of Public

Utilities or Right of Way or Excavation Permit?

A.

Yes.

Q.

Who filled this permit out?

A.

I did at the request of IIW Engineers.

Q.

So, you filled out this application?

A.

I filled out the top section of that

10

application.

11
12

Q.

And the detailed description of work to

be performed, you filled that out as well?

13

A.

Yes.

Based off the conversation I had

14

with the, with the representative of Go the

15

Distance and IIW Engineers.

16

Q.

Tell me about the conversation.

17

A.

I just asked him the question, Detailed

18

description of work to be performed, and he

19

answered access to public right-of-way.

20
21

Q.

conversation?

22
23

A.

No.

It was actually a meeting on

April 9th, I believe.

24
25

Did you initiate the phone

Q.
who?

This was a meeting that you had with

87

A.

With the representative from

IIW Engineers and a representative from

Go the Distance, LLC, which was, I believe his

name was Ben from Conlon Construction.

Q.

So, again, you took the representation

of someone from Conlon Construction as the

applicant for Go the Distance, LLC?

A.

Yes.

Q.

And you don't have any written

10

authority to do that?

This was just a verbal

11

authority to accept his signature?

12

A.

Which is -- yes.

13

Q.

Did you have any other involvement in

14

this application?

15

A.

No.

16

Q.

Did you have any meetings with regard

17

to this application with anyone?

18

A.

Just what I told you.

19

Q.

Other than the April 9th meeting?

20

A.

That's correct.

21

Q.

Did you have any --

22

A.

To the best of my knowledge.

23

Q.

Did you have any phone conversations

24
25

with anyone about this application?


A.

Not that I recall.

88

Q.

You don't recall having a phone

conversation with Denise Stillman about this

application?

A.

Not that I recall.

Q.

I'll hand you Petitioners' Exhibit 14.

6
7

I'll have you identify the document, please.


A.

It's an Affidavit from me in regards to

a copy of the Floodplain Development Application

Permit for Go the Distance, LLC.

10
11

Q.

Does it have attached to it the

Floodplain Development Application Permit?

12

A.

That's correct.

13

Q.

Who prepared the application permit?

14

A.

It was the same meeting on April 9th.

15

I filled out the owners, the agents based off of

16

questions that were asked as attachments and

17

elevations that the engineers gave me.

18

at that point the Go the Distance, LLC's

19

representative signed it and I signed it.

And then

20

Q.

Is it common --

21

A.

After, after the Floodplain Development

22

Permit Application was approved by the city

23

council.

24
25

Q.

Was it common for you to fill out these

applications and permits?

89

A.

It's a normal practice.

Q.

How many of these have you filled out

before?

A.

We've helped people a number of times.

Q.

My question is:

How many times have

you actually filled out the application for the

applicant?

A.

For the applicant, just this one time.

Q.

How about on the Application for Use of

10

Public Utilities or Right of Way, do you

11

typically fill out an application?

12

A.

If asked, I can fill that out.

13

Q.

Have you ever filled one of these out

14

before other than this one?

15

A.

I don't know.

16

Q.

Mr. Michel, how much percentage-wise,

17

if you look at your role as city administrator

18

percentage-wise from December of 2011 to today's

19

date, how much of your time is devoted to this

20

project, this Building Permit Application and

21

the attached site plan?

22

A.

I have no idea.

23

Q.

Is it fair to say that it's been a

24

large percentage of your work since December

25

2011?

90

A.

No.

Q.

Can you give me a breakdown at all?

A.

I have no idea.
MR. HENRY:

Counsel, is there a

reason that there are materials in this

Exhibit 14 relating to Tonya Brisco versus

Portzen Construction?
MS. HESS:

8
9

was provided to my office.

That was the way it


I think it was a

10

mistake on your office's part.

11

what that case is.

12

presented to me, this exhibit from your office.

14

This is exactly how it was

MR. HENRY:

13
Q.

I don't know

Okay.

Mr. Michel, on April 9, 2013 when you

15

had this meeting and filled out these

16

applications on behalf of Go the Distance, is

17

that the first time that you saw the attachments

18

to this Floodplain Development

19

Application/Permit?

20

A.

21

about?

22

Q.

I'm sorry.

What sheet are you talking

All the attachments to the Floodplain

23

Development Application Permit.

24

first time you saw those documents?

25

A.

All the attachments?

Is that the

91

Q.

Yes.

A.

Yes.

Q.

Did you review the attachments in

detail?

A.

Some materials I, I reviewed.

Q.

Whose job would it be to review all

these and verify the information represented

therein?

9
10
11
12

A.

It's outlined in the city code under

Chapter 165.
Q.

As to whose obligation it is to review

and verify these?

13

A.

That's correct.

14

Q.

So, if I hand you a copy of that, you

15

can find that for me and tell me whose

16

responsibility that is?

17

A.

Which one do you want me to --

18

Q.

For purposes of identification I'm

19

going to Marc the Dyersville zoning regulations.

20

Oh, I guess it already is Petitioners'

21

Exhibit 3.

22

A.

It's outlined on page 653 titled

23

under -- in page 653 it's paragraph 15,

24

Administration, Subsection A, starting with the

25

council shall.

92

Q.

So, is that the council's

responsibility to review those documents and

verify that they're accurate?

A.

It's outlined in the code.

Q.

And that's 165 point --

A.

165.40, Subsection 15 of the city code.

Q.

Do you know if the council reviewed all

the Floodplain Development Permit Applications

and, in particular, this one?

10

A.

I don't know.

11

Q.

Do you know if the council reviewed

12

that Floodplain Permit Application to ensure

13

that all necessary permits had been obtained

14

from federal, state or local government

15

agencies?

16
17
18

A.

Can you ask the question.

I don't

understand it.
Q.

Do you know if the council reviewed

19

that particular Floodplain Development Permit

20

Application to ensure that all necessary permits

21

had been obtained from federal, state or local

22

government agencies?

23

A.

I don't know.

24

Q.

Do you know if the council notified

25

adjacent communities and/or counties and the

93

Department of Natural Resources prior to any

proposed alteration or relocation of a water

course and whether or not they submitted

evidence of such notification to the federal

insurance administrator?

A.

I don't know.

Q.

Who would have that information as to

whether or not that was done by the council?

9
10

A.

It would be outlined in the minutes of

the city council meeting.

11

Q.

So, it would have been something done

12

during the course of a public city council

13

meeting; is that what you're telling me?

14

A.

Most likely.

15

Q.

And if it wasn't done during a public

16

meeting, then the council wouldn't have done it?

17

A.

Maybe not.

18

Q.

In this case do you know if you did do

20

A.

I don't recall.

21

Q.

Well, you'd certainly remember with

19

Or I could have done it.

it?

22

regard to that application whether or not you

23

secured those or you verified those things,

24

wouldn't you?

25

A.

Not necessarily.

94

1
2

Q.

Would you keep some written proof of

that?

A.

Not necessarily.

Q.

I'm going to hand you Petitioners'

Exhibit 15.

A.

Do you recognize that document?

It's a document of the proposed

annexation boundaries for the City of

Dyersville.

9
10

Q.

Do you know if those annexation

boundaries were approved?

11

A.

Most likely.

12

Q.

With regard to this Building Permit

13

Application, is the proposed site plan that is

14

attached to that Building Permit Application

15

located somewhere in this annexed property?

16
17

A.
question.

18

Q.

I'm sorry.

I don't understand your

Can you ask it again.


The site plan that's attached to this

19

Building Permit Application that the applicant

20

proposed, do you know if that site plan is

21

located within the boundaries of this annexation

22

map?

23

A.

Most likely, yes.

24

Q.

I'm going to ask you to take a pen and

25

circle, if you know, where the proposed

95

development was going to be.


It's outlined in the Development

A.

Agreement.

Q.

5
6
7

Can you circle the area on this

annexation map.
A.

No.

I'd have to verify what the

Development Agreement says.

Q.

Can you do an approximation?

A.

No, not without being a hundred percent

10
11

accurate.
Q.

So, you're telling me you can't look at

12

this annexation map and indicate anywhere in any

13

close proximity as to where that proposed site

14

plan is going to be?

15
16
17
18
19
20
21

A.

Not without verifying it through the

Development Agreement.
Q.

Well, I'm asking you just to do an

estimation.
A.

No.

Can you do that for me?


I don't feel comfortable doing

that.
Q.

Can I see Exhibit 15, please?

Would

22

you agree with me, and I'm pointing now to the

23

lower right-hand corner of this annexation, is

24

that the area identified as the current Field of

25

Dreams movie site?

(Indicating)

96

A.

I'm sorry.

Q.

Lower right-hand corner.

A.

You're talking about right here?

4
5
6

Where are you pointing to?

(Indicating)
Q.

Yes.

Lower right-hand corner of the

annexation boundaries.

A.

And what was your question again?

Q.

Would you agree with me that that is

the current Field of Dreams movie site?

10

A.

I don't know.

11

Q.

Do you know who currently owns the

12
13
14
15

Field of Dreams movie site?


A.

No, I don't know.

I would believe it's

Go the Distance, LLC.


Q.

Do you know who Go the Distance, LLC,

16

purchased the property from for their proposed

17

project?

18
19
20

A.

Well, according to here, it is Don and

Rebecca Lansing.
Q.

So, would you agree with me, then, that

21

Go the Distance proposed development is located

22

somewhere within that Lansing property?

23

A.

Can you ask the question again, please.

24

Q.

Would you agree with me that the

25

proposed development of Go the Distance is

97

located somewhere within that Lansing property?

A.

Maybe.

Q.

So, you would rely on a legal

description to tell you where the property is in

question?

A.

Not necessarily.

Q.

What would you rely on?

A.

A map too, a map.

Q.

So, you have a map in front of you.

10

Excuse me.

Can you rely on that?

11

A.

Not this particular map.

12

Q.

But in order to get a specific

13

boundary, you would rely on a legal description,

14

wouldn't you?

15

A.

Maybe.

16

Q.

Mr. Michel, I'm going to have you look

17

at this annexation map, annexation boundary map.

18

You're familiar with when the city went through

19

the annexation process, aren't you?

20

A.

In what regards?

21

Q.

The whole process of annexation in this

22

particular -- with regard to this particular map

23

of boundaries.

24

right?

25

A.

You're familiar with that,

Somewhat.

98

Q.

What was your role in that annexation?

A.

Just to bring it forward to the city

council.

Q.

In what way?

A.

In regards to just placing it on the

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7

agenda.
Q.

I want to know everything you did from

the beginning of the annexation process to the

end, every aspect you were involved in.

10

A.

I have no idea.

11

Q.

You can't tell me anything about your

12

involvement in the annexation process other than

13

bringing it to the city council?

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15
16
17

A.

No.

I, I can't answer that.

I don't

know.
Q.

Did you talk with anyone about annexing

property?

18

A.

No.

19

Q.

You didn't talk to anyone?

20

A.

Not that I recall.

21

Q.

Did you talk to Denise Stillman about

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annexing property?

23

A.

I don't know.

24

Q.

Did you talk to any of the homeowners

25

in this annexation boundary about annexing

99

property?

A.

I don't know.

Q.

You don't know or you're just not

telling me?

A.

I don't know.

Q.

Did you send any correspondence to

anyone about annexation?

A.

Possibly, yes.

Q.

Who?

10

A.

Just breakdowns of taxes versus --

11

county versus city is the only thing I recall.


Q.

Who did you send that correspondence

14

A.

I don't know.

15

Q.

Would it have been people affected by

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13

16

to?

the proposed annexation?

17

A.

Maybe.

18

Q.

Why would you have sent it to someone

19
20

that wouldn't be affected by the annexation?


A.

I don't know.

I don't have that in

21

front of me, so I can't answer the question

22

accurately.

23

Q.

Would you be willing to provide

24

correspondence to your -- to counsel, copies of

25

that correspondence that you sent?

100

A.

If it's public record, sure.

Q.

Did you have any phone calls with any

of those people located within the annexation

boundary?

A.

I don't recall.

Q.

Is it possible that you did?

A.

Maybe.

Q.

Did you discuss eminent domain or

9
10

condemnation with any of these people within the


annexation boundaries?

11

A.

Possibly.

12

Q.

You would have used that as a potential

13

method in lieu of a voluntary annexation?

14

A.

Maybe.

15

Q.

And that was all to fulfill the

16

obligations under the Memorandum of

17

Understanding, or what was the purpose of that?

18

A.

I don't understand your question.

19

Q.

Why would you have advocated for that

20

voluntary annexation?

21

that?

22

What was the purpose of

MR. HENRY:

Object to counsel's

23

characterization as advocacy.

I object to the

24

question as being far beyond the scope of the

25

issues remaining for decision in this case.

Not

101

reasonably calculated to lead to the discovery

of admissible evidence regarding the issues in

this case.

Q.

Answer the question.

A.

Can you ask the question again, please.

Q.

I'll have it read back.


(Question read)

7
8

A.

Growth of the municipality.

Q.

Growth of the municipality?

10

A.

Growth of the municipality.

11

Q.

So, based on the annexation map, you

12

wanted the municipality to grow in the manner

13

outlined in the boundaries?


MR. HENRY:

14
15

Object.

It's beyond

the scope of any issues in this case.

16

Q.

Is that correct?

17

A.

Not necessarily.

18

Q.

What was the reason for the growth in

19

this particular area?


MR. HENRY:

20
21
22
23
24
25

A.

I'm sorry.

Same objection.

I don't understand the

question.
Q.

Your previous answer was, you wanted

the municipality to grow; is that accurate?


A.

Not necessarily.

102

1
2

Q.

Why was the annexation process done

then?

A.

In what regards?

Q.

Yes.

A.

For growth of the municipality.

Q.

And why did you want the municipality

This here?

to grow in this direction?

A.

That was the city council objective.

Q.

Do you know why the city council had

10

that objective?
MR. HENRY:

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12
13

That's a yes or no

question.
A.

No.
MS. HESS:

14

You don't have to

15

limit his questions to a yes or no answer.

16

is -MR. HENRY:

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18

The question was:

MS. HESS:

If he has more than a

20

yes or no, he can certainly provide that,

21

though.

22

witness.

24
25

Do

you know?

19

23

This

You don't need to testify for the


You can make your objection.
MR. HENRY:

It was necessary to

interpose that in order to -MS. HESS:

No, it was not

103

necessary.
MR. HENRY:

2
3

further objection -MS. HESS:

4
5

MR. HENRY:

-- to your likely

follow-up question.
MS. HESS:

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9

You were trying to

limit his answer.

6
7

In anticipation of a

Either make an

objection or -MR. HENRY:

10

I was making sure I

11

had the opportunity to make an objection for

12

what I was anticipating as your follow-up

13

question.
MS. HESS:

14
15

witness's testimony, is what you're doing.


MR. HENRY:

16
17

20
21
22
23
24
25

Did you answer the

question fully?
MR. MICHEL:

18
19

You're limiting the

Q.

Yes.

Petitioners' Exhibit 16, can you

identify that document.


A.

It's a Memorandum of Understanding and

Affidavit of Tricia Maiers.


Q.

Does that have attached to it the

actual text of the Memorandum of Understanding?


A.

To the best of my knowledge.

104

Q.

Who created this document?

A.

John Danos from Dorsey & Whitney law

3
4
5
6

firm in Des Moines, Iowa.


Q.

What was your involvement in this

document?
A.

My involvement was to assist in the

negotiation with John Danos, who was acting on

behalf as the legal attorney for the City of

Dyersville.

10

Q.

And what meetings did you have in

11

connection with the drafting of this

12

Memorandum of Understanding?

13

A.

Just phone conversations.

14

Q.

Who did you have phone conversations

15
16
17
18
19

with?
A.

Denise and Michael Stillman and

John Danos.
Q.

Do you remember the dates of those

conversations?

20

A.

No.

21

Q.

How many conversations were there?

22

A.

Several.

23

Q.

With regard to the annexation which is

24

listed as Roman numeral I, what was your

25

involvement in negotiating the annexation that:

105

The City would put forth its best efforts to

annex all of the property the Company has under

contract (the "Property") in Dubuque County into

the city limits by October 1, 2012?


MR. HENRY:

I object.

Again,

it's far beyond the scope of the issues

remaining for decision in this case.

relation to building permit or floodplain

permit.

It has no

It is not reasonably calculated to lead

10

to the discovery of admissible evidence bearing

11

on the issues remaining in this case.

12

Q.

Go ahead and answer the question.


MR. HENRY:

13
14
15
16

I think I'll tell you

not to answer that.


Q.

Now, the date of this Memorandum of

Understanding is June 18, 2012; is that correct?

17

A.

It appears to be.

18

Q.

Would you have been negotiating the

19

terms of this document sometime prior to

20

June 18, 2012?

21

A.

Possibly.

22

Q.

Mr. Michel, in terms of this annexation

23

boundary map, are you aware of any commercial

24

development within the boundaries of this

25

annexation?

106

A.

again.

Q.

I'm sorry.

Can you ask the question

Are you aware of any commercial

development currently within the boundaries of

this annexation map?

A.

I'm sorry.

question.

development"?

9
10

Q.

I don't understand your

What do you mean by "commercial

Why don't you tell me what you think

commercial development is.

11

A.

I don't understand your question.

12

Q.

You're the city administrator, right?

13

A.

Yes.

14

Q.

In your role as city administrator you

15

deal with commercial development?

16

A.

Yes.

17

Q.

What does that mean to you?

18

A.

Commercial activity.

19

Q.

Based on that knowledge and what you've

20

just told me, if you look at this annexation

21

map, inside the boundaries do you know of any

22

commercial activity, commercial development?

23
24
25

A.

It appears to be the Field of Dreams

movie site.
Q.

What else?

107

A.

That's my answer.

Q.

Is there farmland in there?

A.

Possibly.

Q.

Is it all farmland?

A.

I don't know.

Q.

Based on your review of this map and

your experience as city administrator, you don't

know if there's farmland in there?

A.

I said possibly.

10

Q.

Well, let's take each parcel one by

11

one.

Starting all the way over at the far

12

right-hand side of this map as you're looking at

13

it, start with the top right-hand parcel.

14

that farmland based on --

15

MR. HENRY:

I object.

Is

Calls

16

for -- it's inquiry into matters that are far

17

beyond the scope of the issues remaining for

18

decision in this case.

19

calculated to lead to admissible evidence.

20

irrelevant to the issues remaining in this case.

21

I instruct you not to answer.

22

Q.

It's not reasonably


It's

Mr. Michel, is it fair to say, when you

23

look at this annexation map, a large majority of

24

the property is farmland?

25

MR. HENRY:

I object.

Same

108

objection.

and a floodplain permit and that's all.

irrelevant.

Q.

We're here about a building permit


It's

You can answer the question.

MR. HENRY:

MS. HESS:

No.

Don't answer it.

I think the deposition

is over then.

hearing on the remaining issues.

reserve the right to revisit all the issues in

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

We'll have to have a court


I want to

CVCV 101023 and CVCV 057723.


(Deposition was concluded at
11:57 a.m.)

109

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C E R T I F I C A T E
I, the undersigned, a Certified Shorthand
Reporter of the States of Iowa/Illinois, do
hereby certify that there came before me at the
time, date, and place hereinbefore indicated,
the witness named on the caption sheet hereof,
who was by me duly sworn to testify to the truth
of said witness' knowledge touching and
concerning the matters in controversy in this
cause; that the witness was thereupon examined
under oath, the examination taken down by me in
shorthand, and later reduced to Computer-Aided
Transcription under my supervision and
direction, and that the deposition is a true
record of the testimony given and of all
objections interposed.
I further certify that I am neither attorney or
counsel for, nor related to or employed by any
of the parties to the action in which this
deposition is taken, and further, that I am not
a relative or employee of any attorney or
counsel employed by the parties hereto or
financially interested in the action.
Dated at Dubuque, Iowa, this 2nd day of
January, 2014.

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CERTIFIED SHORTHAND REPORTER.

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