City asks court to dismiss DeWitt Park lawsuit

Dec. 25—CLINTON — In its answer filed last week in Clinton County District Court to a lawsuit seeking to annul the sale of DeWitt Park to the YWCA, the city denied a list of accusations and says it followed all applicable laws and asked that the case be dismissed.

The petition for writ of certiorari and injunctive relief on behalf of Stephen Howes, 62, and JoAnn Hunt, 76, was filed Nov. 27 challenging the procedures used to sell the public park to a private entity. It is asking for a temporary injunction to stop the city from conveying the park to the YWCA until the court rules on the legality of the action. The plaintiffs ask that the court hold a hearing on the matter and declare the sale agreement null and void because it was illegal.

The plaintiffs also ask for other relief that is "just and equitable, including court costs."

The city's answer denies most of the petition's claims, such as that it violated the 1855 trust agreement dedicating the park to the city, and seeks to specifically debunk some, such as that an ordinance adopted May 17, 1900, set apart the land for park purposes "only."

"The City denies that the ordinance states 'only' as alleged," says the answer.

—The lawsuit claims that ordinance, which also gave park commissioners exclusive control of the park, was never repealed. The city counters that it was repealed as a matter of course when another ordinance defining the duties of park commissioners was approved in 1975.

Here are other points of contention in the lawsuit and the city's responses:

—The lawsuit says that DeWitt Park has been continuously operated as a park for 168 years, which the city admits in its answer. The city also says the park has shrunk since its creation because of "the adding of a parking lot and the Clinton Housing Authority building years ago."

—The plaintiffs say that an overflow crowd attended the City Council meeting on Nov. 14 because of a hearing "to convey DeWitt Park to a private entity," and some people were turned away because of the Clinton Fire Code, which the city denies.

The city admits that it held a public hearing, but clarified that the City Council held "a public hearing concerning the proposal to approve and authorize execution of a Purchase, Sale, and Development Agreement by and between the City of Clinton and the YWCA of Clinton, Iowa, within the Downtown River Lyons Urban Renewal Area, which Agreement includes the potential sale of the City's interest in real property."

—The plaintiffs point out that the site is designated as a park in the city's comprehensive plan and claim that needed to be changed before any sale. The city answers, however, that the City Council had no duty to amend the comprehensive plan prior to meeting when the sale was approved.

—The lawsuit says the park is "proposed to be located in a designated historic preservation district by the city" and the Clinton Historic Preservation Commission was not consulted and did not discuss the possible sale prior to the Nov. 14 meeting. The city answers that nothing to date has come before the City Council regarding a historic preservation district proposal and that the commission has no control or ownership of the property. The city also says the commission was notified by Councilwoman Rhonda Kearns at its Nov. 9 meeting.

—The lawsuit says that despite the city's Parks Master Plan including DeWitt Park, the City Council neither consulted with the Parks and Recreation Advisory Board nor got a recommendation from it. The answer says the City Council is under no duty to consult with the Parks and Recreation Advisory Board before taking any action. The board's duties also don't include the sale of city property such as DeWitt Park

—The lawsuit says the city did not conduct an appraisal to determine the fair market value of the park property and its advertising for bid "was unlawfuly conducted and fatally flawed."

"Defendants used their bidding process as a pretext to sell the real property to the Clinton YWCA, who Defendants had already predetermined as the buyer of DeWitt Park," the lawsuit says. " On or about November 4, 2023, Defendants published notice of the 364.7 conveyance of this real property to the YWCA before the thirty (30) day time period of the bidding process was completed."

The city counters that an appraisal was not required and "the City followed the competitive bidding requirements for property in an urban renewal area in accordance with Iowa law as recommended by legal counsel from Ahlers & Cooney, P.C."

—The lawsuit says Councilman Gregg Obren should have recused himself because he was employed by the YWCA. The answer says Obren is a part-time lifeguard for the YWCA. He is not an officer or director of the YWCA.

Next up in the case is a court hearing at 8:30 a.m., Jan. 4, regarding whether the YWCA can intervene in the case as a defendant and its request for one judge to be assigned. Then there will be an evidentiary hearing at 1:30 p.m. Thursday, Feb. 8, regarding the plaintiff's request for a temporary injunction.

Attorney Skylar J. Limkemann of Cedar Rapids is representing the city and City Council, and Michael J. Meloy, of Bettendorf, the plaintiffs.