Mick Michel Deposition: RAAC vs. City of Dyersville Trial
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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 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. : CVCV 101023 : DYERSVILLE CITY COUNCIL, : DEPOSITION OF MAYOR JAMES A. HEAVENS, : MICHAEL MICHEL MIKE ENGLISH, MARK : BREITBACH, ROBERT T. PLATZ, : MOLLY EVERS and : DAN WILLENBORG, : : Respondents, : : : - - - - - - - - - - - - - - - X 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.
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The deposition of Dyersville City Administrator Mick Michel prior to the RAAC vs. City of Dyersville trail in Iowa District Court, February 2015
Transcript of Mick Michel Deposition: RAAC vs. City of Dyersville Trial
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IN THE IOWA DISTRICT COURTDUBUQUE 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. : CVCV 101023
:DYERSVILLE CITY COUNCIL, : DEPOSITION OFMAYOR JAMES A. HEAVENS, : MICHAEL MICHELMIKE ENGLISH, MARK :BREITBACH, ROBERT T. PLATZ, :MOLLY EVERS and :DAN WILLENBORG, :
:Respondents, :
::
- - - - - - - - - - - - - - - X
Deposition of MICHAEL MICHEL,taken at the offices of Fuerste, Carew, Juergens& Sudmeier, P.C., 151 West Eighth Street, Suite200, Dubuque, Iowa, commencing at 9:05 a.m.,November 20, 2013, before Christal A. Hansen,Certified Shorthand Reporter.
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APPEARANCES
SUSAN M. HESS, Attorney,HAMMER, SIMON & JENSEN,775 Sinsinawa Avenue, East Dubuque,Illinois 61025, (815) 747-6999, appearedon 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: Matt MescherJeff Pape
* * *
INDEX
WITNESS PAGE
MICHAEL MICHEL
Examination by Ms. Hess 4
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EXHIBITS
Exhibit No(s) Page
Deposition Exhibit 1 15Deposition Exhibit 2 26Deposition Exhibit 3 30Deposition Exhibit 4 32Deposition Exhibit 5 35Deposition Exhibit 6 49Deposition Exhibit 7 61Deposition Exhibit 8 77Deposition Exhibit 9 77Deposition Exhibit 10 77Deposition Exhibit 11 77Deposition Exhibit 12 77Deposition Exhibit 13 85Deposition Exhibit 14 88Deposition Exhibit 15 94Deposition Exhibit 16 103
(Original exhibits retained by Attorney Hess)
Certificate of Shorthand Reporter 109
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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
reflect this deposition is taken pursuant to the
Iowa Rules of Civil Procedure.
EXAMINATION
BY MS. HESS:
Q. Mr. Michel, have you had your
deposition taken before?
A. In this case, no.
Q. In any case.
A. Yes.
Q. So, you're familiar with the process?
A. Yes.
Q. I'm just going to remind you to give a
yes or no response. Don't shake your head so
the court reporter can get it down. Is that
fair?
A. Yes.
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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. Is
that fair?
A. Yes.
Q. What did you do to prepare for your
deposition today?
A. Nothing.
Q. You didn't review any documents?
A. No.
Q. Other than talking with your attorney,
did you have any discussions with anyone to
prepare for your deposition today?
A. No.
Q. How long have you -- strike that. What
is your address?
A. Home address or --
MR. HENRY: Sure.
A. 624 Tenth Avenue Court Southwest,
Dyersville.
Q. How long have you been a resident of
Dyersville?
A. Since 2005.
Q. Who is your employer?
A. City of Dyersville.
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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?
A. East Dubuque, Illinois.
Q. Was that also in the capacity of city
administrator?
A. No.
Q. What was that role?
A. City manager.
Q. Can you tell me what the difference is
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
city manager, your role as a city manager and
your role as a city administrator?
A. In what state?
Q. In Illinois, you were city manager in
Illinois?
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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
day-to-day operations, what kinds of things
would you do as city manager in Illinois?
A. I don't recall. It was 10 years ago.
Q. You don't recall any specific --
A. No.
Q. -- duty, responsibility?
A. No, I don't recall. 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
as outlined by the city code that dictates the
duties of the city administrator.
Q. Anything more specifically in terms of
what you do in your day-to-day role?
A. No. As outlined in the city code.
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Q. Do you develop budgets?
A. Yes. As directed by the city council.
Q. Do you supervise expenditures?
A. Yes. As directed by the city code.
Q. Do you provide technical support?
MR. HENRY: Could you be more
clear. The meaning of the phrase "technical
support" is unclear to me.
Q. Do you understand the question?
A. No.
Q. Do you provide technical support in
terms of equipment, computers, that sort of
thing?
A. Yes.
Q. Do you propose any policy in your role
as city administrator?
A. Just as outlined by the city code.
Q. Is there a specific section in the city
code that you're referring to?
A. No.
Q. Do you have anyone that reports to you?
A. Yes.
Q. Who is that?
A. All department heads as it relates to
the city code.
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Q. Can you tell me which department heads
report to you.
A. City clerk, public works director, park
and rec director. In reference to budget would
be the fire chief and also the police chief.
Q. Prior to your role as city manager for
the City of East Dubuque, do you have any other
administration experience with regard to
municipalities?
A. Yes.
Q. Can you tell me about that?
A. City of East Moline.
Q. In what years?
A. 1996 to 1998.
Q. And why did you leave there?
A. To accept a position as city manager in
East Dubuque, Illinois.
Q. Prior to City of Moline, did you have
any other administrative municipality
experience?
A. Excuse me. I thought I said
East Moline.
Q. East Moline.
A. No.
Q. What was your work experience prior to
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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.
A. None.
Q. Where did you work prior to the
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?
A. The city council.
Q. Do you know what the makeup of the city
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?
A. I don't recall.
Q. So, do you answer to the city council?
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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
administration code section of the city code.
Q. Can you tell me in your own words
without referring to the city code what your
responsibilities are?
A. To manage the day-to-day operations as
guided by the city council.
Q. Let's talk a little bit about the
development of the Field of Dreams property.
What was your first interaction with anyone from
Go the Distance Baseball?
MR. HENRY: I object. That's
beyond the scope of any issue remaining in this
case in which this deposition is being taken.
Q. You can answer the question.
A. December of 2011. Not clear on the
date, but I think it's in December 2011.
Q. Can you tell me about the meeting that
you had.
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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: That was not your
question.
Q. Do you recall anyone that attended the
meeting?
A. I don't recall.
Q. So, you went to a meeting in December
2011, and you don't remember who was at the
meeting?
A. I believe it may have been in December
of 2011, but I don't recall.
Q. Tell me what you remember, location,
time, people that attended this December 2011
meeting.
A. I don't know. I'd have to go back and
check my calendar. I wasn't prepared for any of
that stuff, so...
Q. You have a written calendar outlining
dates of meetings with individuals?
A. No.
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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?
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?
A. Yes.
Q. So, that calendar would have these
dates on it?
A. Sure.
Q. Would it also have the location and the
times of the meetings?
A. I don't know.
Q. Do you remember what was discussed at
the December 2011 meeting?
A. No.
Q. Is December 2011 the first time that
you were aware of any proposed development of
the Field of Dreams property?
A. I don't know, because I don't recall
that date.
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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: There will come a
time, if this is going to be a deposition about
another case, there will come a time when we
have to restrict and limit the questions and the
testimony. At this point I'll let him answer
the question, but I just want you to know
there's going to come a time. So, if you have
questions about this case, I suggest that you
get to them.
MS. HESS: When you refer to
"this case," you're talking about the building
permit issue?
MR. HENRY: Yes.
MS. HESS: And I reserve the
right to re-depose Mr. Michel based on the
pending Motion to Consolidate. So, if you want
to restrict the deposition at this time to that
issue, we can do that, but I'll be taking the
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deposition again following the ruling on the
Motion to Consolidate.
MR. HENRY: That's fine.
Q. 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. I don't know which one that
is.
Q. Okay. I'll hand you a copy of it here
once I find it. I'll hand you what's been
marked as Petitioners' Exhibit 1. If you'd turn
to the third page of that exhibit, you'll see
Ordinance No. 770. Can you tell me who prepared
that document?
A. City Attorney Marc Casey.
Q. Attorney Marc Casey prepared this
document?
A. City Attorney Marc Casey, M-A-R-C.
Q. Did you review this document prior to
presenting it to the council?
A. Yes.
Q. Who else reviewed it prior to
presenting it to the council?
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A. No one.
Q. Did you have any meetings with regard
to Ordinance 770 prior to presenting it to the
council?
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?
A. I'm sorry. I still don't understand
the question. Meetings with whom?
Q. Well, that's what I'm asking. Meetings
with anyone.
A. City Attorney Marc Casey.
Q. Do you remember the date of the
meeting?
A. No.
Q. Do you remember who was present at the
meeting?
A. I'm sorry. It wasn't a meeting. It
was a phone call.
Q. A phone call. Was anyone else on the
phone call other than yourself and Attorney
Marc Casey?
A. Not that I recall.
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Q. What was discussed during the phone
call?
A. I'm sorry. I don't recall.
Q. You had a phone conversation with
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.
Q. During the phone call do you remember
discussing the legal description?
A. Not that I recall.
Q. Prior to presenting Ordinance 770 to
the council, other than one phone conversation
with Attorney Marc Casey, did you have any other
meetings or phone conversations with anyone
else?
MR. HENRY: About?
Q. Ordinance 770.
A. Can you repeat the question, please.
Q. Other than the one phone call you've
already told me about with Attorney Marc Casey
prior to presenting Ordinance 770 to the
Dyersville City Council, did you have a meeting
or phone conversation with anyone else?
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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
Ordinance 770 is.
A. It's an ordinance amending the current
city zoning ordinance and adding the property
from A-1 to C-2 commercial with conditions for
the Field of Dreams project.
Q. And you indicated that Attorney
Marc Casey prepared this, correct?
A. From what I recall, yes.
Q. At whose direction did he prepare it?
Who directed Marc Casey to prepare this?
A. Me.
Q. Do you remember the date you directed
him to prepare it?
A. No.
Q. Where did you get the information that
you provided to Attorney Marc Casey to prepare
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this ordinance?
A. Legal description was prepared by
Snyder & Associates, a surveyor.
Q. Any other information contained in the
ordinance? Where did you get that direction
from --
A. Did not.
Q. -- to give to Marc Casey?
A. Did not.
Q. So, you, yourself, gave Attorney
Marc Casey all the information he needed to
prepare Ordinance 770 other than the legal
description?
A. No.
Q. Who else gave input to the ordinance?
A. The only thing I did was just give the
legal description as outlined here and forwarded
that to City Attorney Marc Casey.
Q. Where did Marc Casey get the remaining
information, the conditions and direction to
prepare Ordinance 770?
A. He prepared it.
Q. Someone gave him direction to prepare
it, correct?
A. Correct. To prepare an ordinance.
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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?
A. With Marc Casey.
Q. How did you come to tell Marc Casey to
prepare this? Who gave you direction to have
Marc Casey prepare Ordinance 770?
A. City council.
Q. When?
A. I don't know.
Q. Would that have been during a regular
city council meeting?
A. Yes.
Q. Other than that regular city council
meeting, did the city council meet with you at
any time to give you direction in preparing
Ordinance 770?
A. No.
Q. Did you get input from anyone at
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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
Ordinance 770. Do you recall having any meeting
with any affiliate from Go the Distance Baseball
leading up to the time of Ordinance 770?
A. Maybe.
Q. What meetings do you remember?
A. Just courtesy phone calls.
Q. Who would have originated the phone
call?
A. I don't recall.
Q. Who was the phone call with?
A. Possibly Denise Stillman.
Q. What was discussed during the phone
calls?
A. Just project update.
Q. Do you recall who would have originated
those phone calls, if it was Denise calling you
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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
typically last?
A. They were courtesy, so they could have
lasted anywheres from five to 10 minutes.
Q. What do you mean by "courtesy"?
A. Just project, update on the project.
Q. Were you giving her updates, or was she
giving you updates?
A. She was just asking questions in
regards to the status of the project at the, at
the city council and possible dates of actions
that needed to be taken. That's the only thing
I recall.
Q. Did Denise Stillman review
Ordinance 770 prior to you presenting it to the
city council?
A. Not that I recall.
Q. Then the final page of Petitioners'
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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.
Q. Is it, the purpose of it to put people
on notice?
MR. HENRY: I object. A
legislative enactment, he's not competent to
express an opinion about the purpose of a
legislative enactment.
Q. Do you have an opinion as to why it's
published in the paper?
MR. HENRY: Same objection.
Incompetent opinion and conclusion.
MS. HESS: Are you instructing
him not to answer the question?
MR. HENRY: I did not instruct
him not to answer the question.
Q. Go ahead and answer.
A. I do not.
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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?
A. I don't know.
Q. When did Denise Stillman start
attending city council meetings?
MR. HENRY: Object. It's beyond
the scope of the issues remaining in this case.
It's not reasonably calculated to lead to
evidence that's admissible in this case.
Q. Go ahead and answer.
A. I don't know.
Q. You don't have any idea when
Denise Stillman started attending city council
meetings?
A. Don't know.
Q. Does Denise Stillman get the agenda
packet at the city council meetings?
A. I don't believe so.
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Q. Who puts together the agenda packets?
A. Staff does.
Q. Who in your staff?
A. Various people such as myself, the city
clerk. Depending on the time of the month,
could be management adding items to the agenda.
Q. Is there any reason why Denise Stillman
would get an agenda packet prior to a city
council meeting?
A. I don't know.
Q. You, yourself, never directed anyone to
provide Denise Stillman an agenda packet?
A. No.
Q. Can you tell me why the city council
would waive the second and third reading of
Ordinance 770?
MR. HENRY: Object. He's
incompetent and calls for an incompetent opinion
and conclusion regarding the action of a
governmental body.
Q. You can tell me if you know.
A. I don't know.
Q. So, as city administrator you would
have no experience or understanding in why a
city council would waive the reading, waive the
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second and third reading of Ordinance 770?
A. It's at their discretion.
Q. Do you deal with legal descriptions a
lot?
A. At times.
Q. Would you agree with me that it's
important to have an accurate legal description?
A. Yes.
Q. And if you don't, you could
mis-describe an entire parcel of property,
couldn't you?
A. Maybe.
Q. Did anyone ever review the legal
description that was used in Ordinance 770 other
than yourself and Marc Casey?
A. No.
Q. I'm going to hand you Petitioners'
Exhibit 2. Can you tell me what that is?
A. It appears to be an Affidavit of
Mary Jo Goldsmith with supplemental materials
attached to that affidavit.
Q. It's an agenda of a Dyersville City
Council meeting of August 6, 2012, correct?
A. No. I would disagree with that.
Q. Does the third page of this exhibit, is
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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.
Q. And attached to that agenda is a Notice
of a Public Hearing; is that correct?
A. No.
Q. What is it? What's on the page
following the agenda?
A. It's an affidavit showing a Notice of
Public Hearing with some supplemental
information in the Ordinance 770.
Q. What is the public hearing about?
A. It's in regards to All-Star Ballpark
Heaven complex at the existing Field of Dreams.
Q. It's a Notice of a Public Hearing to
rezone that property, isn't it?
A. Yes.
Q. And on that Notice of Public Hearing
the legal description that appears there is for
the southwest quarter of the southeast quarter
of Section 22, correct?
A. It has a statement of that, of that.
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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
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?
A. Maybe.
Q. You don't know if it's incorrect?
A. I don't know. I don't know what the
correct legal description is.
Q. Who would know?
A. Maybe a surveyor or city attorney.
Q. You're telling me you don't know if
this is correct or not?
A. No. I'd have to look at the -- what
the actual legal description is. It may be
incorrect.
Q. It may be incorrect, but you're telling
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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.
Q. And it may be an incorrect legal
description that was given to the public?
A. Yes.
Q. But you don't know for sure; that's
what you're telling me today?
A. Correct.
Q. The public, you would expect that the
public would rely on this legal description,
wouldn't you?
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
Public Hearing, it's for the public to have
public notice, isn't it?
A. Correct.
Q. And you're putting them on notice that
that is the property that's being rezoned,
correct?
A. I didn't put the public on notice. The
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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;
that's what you're telling me?
A. Yes.
Q. I'm going to hand you Petitioners'
Exhibit 3. Can you turn to the third page of
this exhibit. This is Ordinance 777, correct?
A. I'm sorry. Can you repeat the
question, please.
Q. Is this Ordinance 777?
A. No. It's an Affidavit of
Tricia Maiers.
Q. The third page?
A. The third page appears to be an
Ordinance No. 777.
Q. Can you tell me where this document
originated from, Ordinance 777?
A. City Attorney Marc Casey.
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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
quarter section and a southwest quarter section
that was in error.
Q. So, now you're telling me that
Ordinance -- you're agreeing with me now that
Ordinance 770 had an error in the legal
description?
MR. HENRY: I object. That's a
statement of fact by counsel. It's not a
question, and it's an inaccurate statement or
characterization of his prior testimony.
Q. 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?
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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
error is? Where did you get that information?
A. That information came from Marc Casey.
Q. I'll hand you Petitioners' Exhibit 4.
Do you recognize that document?
A. Yes.
Q. What is it?
A. It's an Affidavit from me in regards to
the Building Permit Application by the applicant
Go the Distance, LLC.
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.
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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.
Q. Has anyone ever made any
representations to you about who has authority
to speak on behalf of Go the Distance Baseball?
A. Can you repeat the question, please.
Q. Has anyone, any representative of
Go the Distance ever told you about who has
authority to speak on behalf of Go the Distance?
A. Yes.
Q. Who?
A. Denise Stillman.
Q. What has she told you?
A. She told me that she, along with
representative from Conlon Construction, have
representation along with the, the engineer for
the project from IIW.
Q. When did she tell you that?
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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?
A. No.
Q. Did you check with anyone to see
whether or not you could rely on that
representation and accept that this person had
authority to sign on behalf of the owner?
A. No.
Q. If you'll just keep Petitioners'
Exhibit 4 out. Do you know what section of the
Dyersville zoning regulations discusses Building
Permit Applications?
A. I believe it's Chapter 165 of the city
code.
Q. And do you follow Chapter 165 when you
go through a Building Permit Application
process?
A. To the best of my ability.
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Q. Can you tell me what that process is.
A. Not verbally. 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.
Q. I'll hand you Petitioners' Exhibit 5.
I'll have you go through the process with me.
Building Permit Application at 165.37, that's
the procedure. Can you find that on page 638?
Did you go through this process with this
particular Building Permit Application?
A. Yes.
Q. Tell me what you did.
A. I went through and read Chapter 165.37,
outlined it as such, and went through the
building permit process.
Q. So, with regard to Number 5 in 165.37,
was this Building Permit Application accompanied
by a plat drawn to scale showing the actual
dimensions of the lot to be built upon, the
size, shape and location of the building to be
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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.
Q. Did it show actual dimensions of the
lot to be built upon?
A. No.
Q. Did it show the size, shape and
location of the building to be erected?
A. Yes, I believe so.
Q. Where at?
A. Right here. Right in the -- where the
building permit is at. (Indicating)
Q. Why don't you circle what you're
pointing to that shows the size, shape and
location of the building to be erected.
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
the size and shape of the building from this
plat?
A. We measured it out using GIS
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information.
Q. You say "we." Who's that?
A. The, the engineer for that project
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. IIW Engineers was the engineer for
the project.
Q. You just told me that we used GIS.
A. I used GIS in reference to it to verify
the engineer's information that was given to me.
Q. Is it attached to this Building Permit
Application somewhere?
A. I don't know.
Q. What date did you use GIS to determine
the -- I'm sorry. What did you use GIS for
again?
A. To verify the information that was
presented to me.
Q. How were you able to do that?
A. We used the location or the engineer's
supplied location, and then I field verified
that using GIS information.
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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.
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
looking at this Building Permit Application what
the size, shape and location of the building is?
A. Don't know.
Q. Then how would it pass the proper
process according to the ordinances?
A. It had a size and verification based
off of the front end of the permit if you use
the front setback, the rear setback and the side
setbacks of the building footprint that's used
for this site, and it was within those
parameters that was used and given to the city
council for review and consideration.
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.
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Q. Where does it show on the site plan the
location of that building?
A. Just right here where the --
(Indicating)
Q. Circle what you're talking about so we
make a record here.
A. The footprint that was used is right
here. This is just a poor description -- poor
copy of the building permit. The original
building permit would show that.
Q. Would show what?
A. Would show the outline of the property
that was used.
Q. Well, right now I'm talking about this
specific building. How are we able to determine
on this drawing where this specific building is
that relates to this permit?
A. It's more than one building. It's
outlined in the key maps of the buildings.
Q. Does this Building Permit Application
indicate that there will be more than one
building?
A. Yes.
Q. Where does it indicate that?
A. In the map key.
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Q. Based on this Building Permit
Application, how many buildings were proposed to
be built?
A. Approximately five or more. No. I'm
sorry. Five.
Q. Five building permits. So, you don't
require a separate permit application for each
building?
A. No.
Q. And on the permit application it
indicates size of building, total square footage
is 187,000; is that correct?
A. That's what's stated in the Building
Permit Application.
Q. Were you able to verify that that was
what, according to this attached site plan, that
that square footage was consistent with this
site plan?
A. In relationship with the engineer, I
took the engineer's word for that.
Q. Did you have a discussion with the
engineer?
A. Yes.
Q. When was that?
A. The date that the building permit was
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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. He told me that verbally.
Q. This plat isn't drawn to scale, is it?
A. I don't know. It was prepared by IIW
Engineers.
Q. One of the require -- well, there's no
scale to follow on this, on this map, is there?
A. There's a scale to follow on it.
Q. There aren't any specifications
attached to this Building Permit Application,
are there?
A. I'm sorry. Can you repeat the
question.
Q. There aren't any specifications for the
proposed construction attached to this Building
Permit Application, are there?
A. I'm sorry. I don't understand your
question. What do you mean by "specifications"?
Q. What's your understanding as to what a
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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?
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
understand what your question is, is what I'm
telling you.
Q. How do you interpret this code
requirement that this Building Permit
Application be accompanied by plans and
specifications? What does that mean to you?
A. It means the building permit, being the
type of construction being filled out along with
questions that were asked in reference to the
Building Permit Application, the type of
construction, the type of -- size of the
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building, total square footage, basement,
whether it has an extinguishing system or not
and the number of stories that are related to
it.
Q. The code says it has to be accompanied
by. 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
specifications, doesn't that mean it has to be
attached to it?
A. Not necessarily.
Q. So, you didn't require this agent to
submit evidence that they had authority to sign
this building permit?
A. No.
Q. Were any of the proposed site plan
drawings, were they located in flood-prone
areas?
A. Maybe.
Q. Wouldn't you have had to determine that
to see whether or not an application for a
building permit met the procedure under the
code?
A. I think a floodplain development permit
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was taken out.
Q. So, it was in a flood-prone area?
A. Certain section may have been in the
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?
A. A floodplain development permit was
taken out with accompanied information.
Q. So, according to your review at least
of the city ordinances, this building permit met
the requirements?
A. Correct.
Q. The value of the work indicated on this
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.
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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.
Q. A portion of the property where this
building permit proposes to do commercial
development was actually zoned A-1 at the time,
wasn't it?
A. Not to my knowledge.
Q. I'm going to hand you, I think we're on
Petitioners' 6 now. I'm going to hand you
Petitioners' 6. Do you recognize that document?
A. Can you repeat the question, please.
Q. Do you recognize this document?
A. It's an Affidavit of Mick Michel.
Q. And the Affidavit has some attachments?
A. Yes.
Q. What are they?
A. It has a Press Statement by Residential
& Agricultural Advisory Committee, LLC, RAAC, in
quotations, R-A-A-C, in quotations, shows
Ordinance 770 and the Public Notice of Ordinance
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770 along with a map of a legal description
zoned from A-1 to C-2.
Q. Have you had a chance to review this
document before today?
A. No.
Q. Did you prepare this Affidavit?
A. Yes. I prepared it on June 7, 2013.
Q. Did you review it before you signed it?
A. Yes.
Q. So, you have reviewed this before
today?
A. Yes.
Q. And you've reviewed the attachments
before today, right?
A. Yes, at the time that the Affidavit was
prepared.
Q. So, what is your understanding as to
what these attachments are? Tell me what you
know about them.
A. It's a Press Statement that was given
to the city council at a council meeting along
with Ordinance 770, a public hearing notice,
along with an uncertified or unsigned land
surveyor showing a map of a legal description
rezoned from A-1 to C-2.
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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?
A. Can you repeat the question, please.
Q. Since the time you received this
document, were you able to determine whether or
not this survey that was provided by the
surveyor was accurate with regard to how the
legal description was mapped out?
A. I'm sorry. I don't understand your
question.
Q. Did you have an opportunity after you
were presented with this to verify whether or
not this information was true?
A. I referred it to our city attorney for
review.
Q. So, the evening that you received this
and had it in your hands, what actions did you
take?
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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
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.
Q. Did you take any action the evening
that the city council was presented with this to
look at the legal description?
A. No.
Q. So, at no time did you look at the
legal description that was in Ordinance 770
after you received this?
A. No.
Q. Did you make any statements to the
council the night that this was received by the
council with regard to this legal description?
A. Maybe.
Q. What do you remember?
A. I don't recall. You'd have to look at
the tape.
Q. Did you make any representation to the
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council or recommendation about what to do in
light of the information that they received that
night?
A. I don't know. You'd have to look at
the tape. That's a public record.
Q. 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
page of this as true and you look at your
Building Permit Application attached to
Exhibit 4, the last page of the site plan,
according to what was represented to the council
when this press release was provided, a portion
of the proposed property where the development
was to take place was zoned A-1; is that
correct?
A. I'm sorry. Can you rephrase your
question. I don't understand it.
Q. Okay. If you take Petitioners'
Exhibit 6, the last page, if you accept that as
being the accurate platting of the legal
description of Ordinance 770, --
A. Okay.
Q. -- there is a section which is a
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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
accept this as true; is that right?
A. No.
Q. Why not?
A. I don't accept this as true because
that wasn't the legislative intent of the city
council.
Q. What was the legislative intent of the
city council? And how do you know what the
legislative intent of the city council was?
A. Exhibit 2 shows the rezoning of the map
that's indicated.
Q. Right now you're looking at
Petitioners' Exhibit 2, and you're looking at a
map titled Rezoning Request, Field of Dreams
Property, A-1 to C-2 Conditional Use; is that
correct? Is that correct?
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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
of the construction of an All-Star Ballpark
Heaven complex featuring 24 baseball and
softball fields targeted for competition and
training for youth ages 8 to 14 and incidental
uses thereof. Those two pieces was the
legislative intent of the city council.
Q. So, you're saying that because the
legislative intent of the city council was that
this be zoned commercial, that that's what we
should follow? I'm not understanding what your
reasoning is.
A. I'm just answering your question.
Q. If you accept this map as true, is this
parcel designated the southeast quarter of the
southeast quarter of Section 22, is that zoned
A-1?
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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?
A. Not necessarily.
Q. Why not?
A. Because that's not the legislative
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
in 770 is what -- the legal description, but
that wasn't the legislative intent of the city
council.
Q. But that's what the legal description
said, wasn't it?
MR. HENRY: I object. Asked and
answered.
Q. Yes or no?
MR. HENRY: I object. Asked and
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answered.
MS. HESS: He can still answer.
MR. HENRY: 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: Certainly he can
answer it yes or no.
MR. HENRY: He doesn't feel that
he can.
Q. The legal description in Ordinance
770 --
MR. HENRY: This is
argumentative.
MS. HESS: I'm asking a question.
MR. HENRY: You're arguing.
MS. HESS: I'm asking a question.
Q. The legal description in Ordinance 770,
if you map it out on a plat map, is that what it
looks like on Exhibit 6, the last page?
A. I don't know.
Q. If you accept the legal description in
Ordinance 770 as mapped out in the last page of
Petitioners' Exhibit 6, if you accept that as
true, just going by the legal description now,
not the legislative intent, if you accept this
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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. It calls for a legal conclusion
that this witness is not competent to make.
Calls for an engineering conclusion, opinion and
conclusion that this witness is not, has already
said he's not competent to make. And it's
repetitive and argumentative.
MS. HESS: Are you instructing
him not to answer?
MR. HENRY: Yes.
Q. Mr. Michel, you took this press release
and you took -- the city council took action
after they received this, didn't they?
A. I don't know. You'd have to look at
the council minutes.
Q. Who drafted Ordinance 777?
A. City Attorney Marc Casey.
Q. At whose direction?
A. At my direction per the city council's
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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
you?
A. Is to look into the matter.
Q. All he said was to look into the
matter, and then what did you do?
A. I forwarded to the City Attorney
Marc Casey for review.
Q. Did you prepare Ordinance 777?
A. No.
Q. Did you have any input in it at all?
A. No.
Q. Did you look at any of these legal
descriptions at any time after you received that
press release?
A. No.
Q. Did you have any meetings with
Marc Casey about Ordinance 777?
A. One phone call.
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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
Attorney Casey following the city council
meeting after the press release was presented?
A. I don't know.
Q. Did you have a phone conversation with
Denise Stillman after the press release was
presented to the city council?
A. I don't recall.
Q. Is it possible that you did?
A. Maybe.
Q. Did you have a meeting with
Denise Stillman after the press release was
presented to the city council?
A. Not that I'm aware of.
Q. If you had a calendar, would that
indicate whether you had any meetings with
Denise Stillman?
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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: Object. It's
overbroad.
Q. Tell me what you remember about any
meeting that you had with Denise Stillman in
person.
MR. HENRY: Same objection.
Q. You can answer the question.
MR. HENRY: Counsel, if you'd
limit it to a subject matter, he could make
progress.
MS. HESS: I want to know about
any meeting that he had with Denise Stillman.
MR. HENRY: In that case, it's
overbroad.
Q. You can answer the question.
A. I don't know.
Q. You don't know about any --
A. I don't understand your question.
Q. I want to know about any in-person
meeting that you had with Denise Stillman.
MR. HENRY: At any time about any
subject, Counsel? Is that your question?
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Q. Yes, at any time about any subject.
MR. HENRY: 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. It's burdensome, not reasonably
calculated to lead to admissible evidence in
this case regarding the issues remaining in this
case.
Q. I want to know about all in-person
meetings that you had with Denise Stillman with
regard to Ordinance 770.
A. None that I recall.
Q. Did you have any in-person meetings
with Denise Stillman about Ordinance 777 or any
subject related to that?
A. I don't understand your question.
Q. Did you have an in-person meeting with
Denise Stillman with regard to Ordinance 777?
A. Not that I recall.
Q. What didn't you understand about my
question, an in-person meeting?
A. I don't understand your question. What
is your question?
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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?
A. I'm sorry. What is your question?
Q. I want to know what you don't recall.
You don't recall whether you had a meeting or
what happened at the meeting? Is it possible
that you had meetings?
A. I don't recall having a meeting with
Denise Stillman.
Q. Did you have a phone conversation with
Denise Stillman about Ordinance 777?
A. Not that I recall.
Q. Did you have an in-person meeting with
Denise Stillman about the Building Permit
Application?
A. Not that I recall.
Q. Did you have a phone conversation with
Denise Stillman about the Building Permit
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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.
Q. Anything else?
A. No.
Q. You had no other discussions with her?
A. No.
Q. Did you talk with Denise Stillman prior
to your deposition today?
A. No. Let me rephrase that. Maybe. In
the time frame between the time that she first
came to Dyersville, maybe I have had a
conversation with her.
Q. Did you have any meetings with any city
council members about Ordinance 770?
A. No.
Q. Did you have any phone conversations
with city council members?
A. No.
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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?
A. No.
Q. I'll hand you Petitioners' Exhibit 7.
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
perjury and pursuant to the laws of the State of
Iowa that this Affidavit was true and correct,
didn't you?
A. That Affidavit is, both Affidavits are
correct.
Q. In fact, in this Affidavit you said, in
the second paragraph now, third sentence: Upon
notice, I, meaning Mick Michel, confirmed that
there was an error in the legal description on
Ordinance 770.
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Is that what you put in your
affidavit? Did I read that correctly?
A. I'm sorry. Can you -- I don't
understand your question. Can you, can you ask
it again, please.
Q. This is your Affidavit, isn't it,
Mr. Michel?
A. Yes.
Q. You prepared this under oath?
A. Yes.
Q. And you said in this Affidavit, and I'm
in the second paragraph, the third sentence.
MR. HENRY: Counsel, that's the
second time you referred to the second
paragraph, the third sentence. The second
paragraph starts on page 1.
Q. I'm on page 2.
MR. HENRY: 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.
Q. Mr. Michel, I'm on page 2, correct?
A. Sure. Uh-huh.
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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. Thank you.
Q. Can you find that? Let me know when
you're there.
A. Yes.
Q. Follow along with me while I read out
loud.
A. Sure.
Q. You indicated you didn't understand my
question, so I'm going to reask it. Okay?
A. Sure.
Q. Upon notice, I, meaning Mick Michel,
right? Is that right?
A. Correct.
Q. Confirmed that there was an error in
the legal description on Ordinance 770. Did I
read that correctly?
A. Yes, you did.
Q. So, you made this statement under oath?
A. Yep.
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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: Counsel, that's not
what it says.
A. No.
Q. Did I read that incorrectly,
Mr. Michel?
A. I don't understand your question.
Q. Did I, did I read your Affidavit
exactly how it was typed?
A. On the third sentence, yes.
Q. Now, based on that, your Affidavit
doesn't say that Marc Casey confirmed there was
an error in the legal description, does it?
A. No.
Q. Let's go down to the middle of that
paragraph about that starts with the sentence I
concluded. Let me know when you find it.
A. Okay.
Q. You want to follow along while I read
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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
it was a scrivener's error, was it?
MR. HENRY: I object. That's not
what it says, Counsel. You haven't asked him
anything about the basis for his conclusion, so
the method of his confirmation in either of
these two sentences.
MS. HESS: This is contradictory
testimony from what he previously --
MR. HENRY: It is not
contradictory testimony from what he previously
testified. You're selectively reading and then
adding words as you ask your questions. It's
unfair in form.
Q. Mr. Michel, did I read that sentence
correctly?
A. You read the sentence correctly.
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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."
A. That's correct.
Q. You didn't say after my conversation
with Marc Casey. That's not what your Affidavit
says, is it?
A. I disagree with that.
Q. Where in your Affidavit does it say
that you concluded the mistake in Ordinance 770
was a scrivener's error after you talked with
Marc Casey?
A. It doesn't say that.
Q. Okay.
A. But that was the basis of my
conclusion.
Q. Mr. Michel, is it your understanding
that during a city counsel meeting, if a concern
is brought up by a citizen of Dyersville, that
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that's something the city council should
consider?
A. I'm sorry. Can you ask the question
again.
Q. 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.
Q. Are you ever involved in investigating
any of those concerns that are raised by
citizens?
A. Not normally. It just depends on the
situation.
Q. With regard to this building permit and
the proposed project on the Field of Dreams
property, did you ever have any discussion with
Denise Stillman or anyone from Go the Distance
about an alternate location for the project?
A. Not that I recall.
Q. Is it possible that you could have and
you just don't remember?
A. Maybe.
Q. Did you ever have a meeting with
someone other than Denise Stillman or anyone
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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: It has to do with the
building permit.
MR. HENRY: It doesn't have to do
with the issues remaining in this case, which
are the approval of the building permit.
Q. Go ahead and answer the question.
A. I'm sorry. Can you ask the question
again.
Q. I'll have it read back.
(Question read)
A. Not that I recall.
Q. Have you ever had a meeting or a
conversation with anyone about offering
Go the Distance an opportunity to hold their
activities at some alternate location?
A. Not that I'm aware of.
Q. Are you familiar with the Comprehensive
Plan of Dyersville?
A. Somewhat, yes.
Q. And what is your understanding as to
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what is currently in place for the
Comprehensive Plan?
MR. HENRY: I object. It's
overbroad. It's so broad as to defy answer.
Q. 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: The plan is what it
is. It calls for incompetent, irrelevant
testimony.
Q. Mr. Michel, as city administrator are
you familiar with a Comprehensive Plan?
A. Somewhat, yes.
Q. Does Dyersville have one?
A. Yes.
Q. What's the date of the
Comprehensive Plan currently in place in
Dyersville?
A. I believe it's 1963 and supplementals
attached to it.
Q. Are you familiar with the Comprehensive
Plan?
MR. HENRY: Asked and answered.
A. Somewhat, yes.
Q. Does the Comprehensive Plan call for a
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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.
A. It's outlined in the
Comprehensive Plan.
Q. I want to know what your understanding
is.
A. I don't have the Comprehensive Plan in
front of me.
MR. HENRY: This is far beyond
the scope of the issues remaining in this case,
Counsel.
MS. HESS: It has to do with the
building permit --
MR. HENRY: No, it doesn't.
MS. HESS: -- and the project
that's attached to that building permit. It
certainly does.
MR. HENRY: No. The building
permit has to do with the application that was
submitted and the compliance of the application
with the code. There's nowhere in that code
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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. It's not in the
code. They don't have that authority.
MS. HESS: He hasn't told me
that. You're now giving him testimony as to
what his role is as city administrator. These
are his answers. If that's not his role, then
he needs to tell me.
MR. HENRY: You've said that this
is relevant to the building permit. I'm
explaining to you why it is not.
MS. HESS: Are you asking him not
to answer the question?
MR. HENRY: I'm suggesting that
you should tailor your questions to the issues
remaining in this lawsuit.
MS. HESS: Is that your
objection?
MR. HENRY: No. I just answered
your question.
MS. HESS: Then I'll have the
witness answer the question.
A. Can you ask the question again, please.
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MS. HESS: Can you read it back,
please, Christal.
(Question read)
A. I believe I answered my question --
your question. Excuse me.
Q. Do you know if any work or construction
has been done pursuant to that building permit
that you issued?
A. I don't know.
Q. When was the last time you were at that
location?
A. I don't recall.
Q. You don't remember the last time you
went to the All-Star, proposed All-Star Ballpark
Heaven location?
A. No, I don't recall.
Q. Was it in the last six months?
A. I don't recall.
Q. Would your calendar indicate whether or
not you were at that location?
A. Maybe.
MR. MICHEL: Can we take a break?
MR. HENRY: Sure.
MS. HESS: Yes, that's fine.
(Recess)
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EXAMINATION
BY MS. HESS: (Continued)
Q. Mr. Michel, if you'll pull out the
Building Permit Application, which is, I
believe, Petitioners' Exhibit 4. Do you have
that in front of you?
A. Yes.
Q. Under the Zoning District, which is on
the first page of the Building Permit
Application or the third page of this exhibit,
is that designated C-2?
A. Yes.
Q. Is that something that you review when
you issue Building Permit Applications, whether
or not it's in the appropriately-zoned district?
A. Yes.
Q. Why is that important?
A. Because it guides the setback
requirements under the city code.
Q. And what would happen if the building
permit was, Building Permit Application had a
Zoning District in it that was inconsistent with
what was proposed to be built?
A. I'm sorry. I don't understand your
question.
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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?
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,
without looking at the code, if this particular
Building Permit Application called for this site
plan to be built in an A-1 district, would that
have been rejected?
A. Most likely not.
Q. Most likely not?
A. Correct. From the setback requirements
that I've seen here.
Q. Can you find me -- do you have the
Dyersville zoning regulations over there
somewhere?
A. Is that the complete zoning regulation?
Q. Are you familiar with the zoning
regulations with regard to the Zoning Districts
and the definitions of each Zoning District?
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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
regulations?
A. It's outlined under Section 165.2 under
the city code, of the city code, excuse me, of
the city code.
Q. So, Building Permit Application 13-1575
and the attached site plan would be permissible
in an A-1 district according to your
interpretation of the code?
A. I said that the setback requirements
would be permissible. The question would come
in is whether it would be a permitted principal
use or not if the zoning code was under A-1.
Q. And based on what you know about what
the principal use of the property was for this
Building Permit Application, would that be
allowed in an A-1 district?
A. Most likely not under the permitted
principal uses section.
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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?
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, --
A. Uh-huh.
Q. -- if you got a Building Permit
Application 13-1575 and the Zoning District had
been A-1 --
A. That would most likely been denied.
Q. What is your understanding as to what a
Comprehensive Plan is used for?
A. It's a planning document.
Q. What is it used for?
A. I'm sorry. I don't understand your
question.
Q. What is a Comprehensive Plan used for?
A. It's a planning document.
Q. So, it's used for planning?
A. For planning purposes.
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Q. For future development in Dyersville?
A. It's a planning document. I gave you
an answer.
Q. 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'
Exhibit 8. Are you familiar with that document?
A. 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
plan, is this the plan that you were talking
about, or is there, in fact, a
Comprehensive Plan titled 1963?
A. Not that I recall.
Q. And you said --
A. This is just a piece of it.
Q. So, it's your understanding that
there's more to this Comprehensive Plan than
what's represented in Petitioners' Exhibit 8?
A. Maybe, yes.
Q. I'm going to hand you Petitioners'
Exhibits 9, 10, 11 and 12. I'll have you look
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at those documents. Tell me once you've had a
chance to review those. Have you had a chance
to review those?
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.
Q. So, you misspoke earlier?
A. I was answering to the best of my
ability.
Q. And now that you've reviewed that, you
agree that it's the '61 through '62
Comprehensive Plan and supplemental attachments?
A. Yes, but this isn't the complete plan.
Q. Well, have you had an opportunity to
review, at least cursory, the Petitioners'
Exhibits 8, 9, 10, 11 and 12?
A. Yes. And it's missing pages.
Q. Other than those plans that you have
reviewed and the missing pages that you say are
not in there, are there any other Comprehensive
Plans that are applicable to the City of
Dyersville?
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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?
A. These are the active Comprehensive Plan
documents.
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
that are part of the Comprehensive Plan. There
might be a section missing, I'm not sure. I'd
have to go back and verify.
Q. Do you know of any other plans that I
didn't give you that are applicable to the City
of Dyersville?
A. I don't know.
Q. If you review Petitioners' Exhibit 12,
is that the most recent supplement to the
Comprehensive Plan?
A. Maybe.
Q. The City of Dyersville Community
Builder Plan dated 1997?
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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.
Q. If there is another document out there
that applies to the Comprehensive Plan of the
City of Dyersville, you aren't aware of it?
A. I'm just show -- tell -- documenting
what is here in front of me.
Q. I want to know from you what the most
recent -- if I'm missing a supplement, I want to
know.
A. I don't know without verifying at the
office. I don't know the answer to your
question.
Q. So, as you sit here right now, you
don't know if there are any other
Comprehensive Plans applicable to the City of
Dyersville?
A. That's correct.
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Q. If you look at the 1997 Community
Builder Plan on page 11 --
A. I'm sorry. What page?
Q. Eleven. If you follow along with me
under Objective C close to the top of the page,
do you see where I'm reading? Objective C is to
allow for continued growth and development near
US 20 and along Iowa 136. Did I read that
correctly?
A. That's what it states.
Q. And the strategy was to, Strategy
Number 1 for that objective was to encourage
businesses that require a large amount of space
and parking to develop along the highway. Did I
read that correctly?
A. That's what the strategy says.
Q. And Strategy 2 was to ensure that
adequate land and infrastructure are available
to develop along the highway. Did I read that
correctly?
A. That's what the strategy says.
Q. And that's in the most recent Community
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
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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?
A. Yes, I would.
Q. Mr. Michel, are you affiliated with any
organizations, professional organizations or
associations?
A. Lions Club.
Q. Anything else?
A. Iowa City Managers Association,
International City Managers Association. I'm
the small city representative for Dubuque County
for the RPA 8 District.
Q. RPA?
A. RPA.
Q. What's that?
A. Regional Planning Affiliation. And I
sit for the City of Dyersville on a -- the Smart
Planning and Zoning Committee.
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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?
A. Yes.
Q. Do you have any affiliation with that
organization?
A. Under the city administrator's code
section I am the liaison person for the City of
Dyersville.
Q. So, you are affiliated with that board?
A. No. Just a liaison representative.
Q. What do you --
A. I just sit on behalf of the City of
Dyersville.
Q. You actually attend the board meetings?
A. I attend the board meetings, yes.
Q. And as a liaison what is your job or
your role?
A. My role is to attend those meetings.
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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?
A. I don't --
MR. HENRY: I object. This is
continuing to wander far beyond the scope of the
building permit, floodplain permit that are the
only issues remaining in this case.
MS. HESS: What was the last
question?
(Question read)
Q. Go ahead and finish your answer.
A. I'm sorry. What was your question
again?
Q. What have you been asked?
A. I don't know.
Q. You don't recall any specific --
A. I don't recall.
Q. In your role as liaison with Dyersville
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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
Building Permit Application, anything with
regard to that project?
A. Not that I recall.
Q. Did you have any telephone
conversations with anyone in your role as
liaison?
A. Not that I recall.
Q. Are you affiliated with any other
association or board that you haven't already
told me about?
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
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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
application.
Q. And the detailed description of work to
be performed, you filled that out as well?
A. Yes. Based off the conversation I had
with the, with the representative of Go the
Distance and IIW Engineers.
Q. Tell me about the conversation.
A. I just asked him the question, Detailed
description of work to be performed, and he
answered access to public right-of-way.
Q. Did you initiate the phone
conversation?
A. No. It was actually a meeting on
April 9th, I believe.
Q. This was a meeting that you had with
who?
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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
authority to do that? This was just a verbal
authority to accept his signature?
A. Which is -- yes.
Q. Did you have any other involvement in
this application?
A. No.
Q. Did you have any meetings with regard
to this application with anyone?
A. Just what I told you.
Q. Other than the April 9th meeting?
A. That's correct.
Q. Did you have any --
A. To the best of my knowledge.
Q. Did you have any phone conversations
with anyone about this application?
A. Not that I recall.
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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.
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.
Q. Does it have attached to it the
Floodplain Development Application Permit?
A. That's correct.
Q. Who prepared the application permit?
A. It was the same meeting on April 9th.
I filled out the owners, the agents based off of
questions that were asked as attachments and
elevations that the engineers gave me. And then
at that point the Go the Distance, LLC's
representative signed it and I signed it.
Q. Is it common --
A. After, after the Floodplain Development
Permit Application was approved by the city
council.
Q. Was it common for you to fill out these
applications and permits?
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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
Public Utilities or Right of Way, do you
typically fill out an application?
A. If asked, I can fill that out.
Q. Have you ever filled one of these out
before other than this one?
A. I don't know.
Q. Mr. Michel, how much percentage-wise,
if you look at your role as city administrator
percentage-wise from December of 2011 to today's
date, how much of your time is devoted to this
project, this Building Permit Application and
the attached site plan?
A. I have no idea.
Q. Is it fair to say that it's been a
large percentage of your work since December
2011?
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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: That was the way it
was provided to my office. I think it was a
mistake on your office's part. I don't know
what that case is. This is exactly how it was
presented to me, this exhibit from your office.
MR. HENRY: Okay.
Q. Mr. Michel, on April 9, 2013 when you
had this meeting and filled out these
applications on behalf of Go the Distance, is
that the first time that you saw the attachments
to this Floodplain Development
Application/Permit?
A. I'm sorry. What sheet are you talking
about?
Q. All the attachments to the Floodplain
Development Application Permit. Is that the
first time you saw those documents?
A. All the attachments?
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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?
A. It's outlined in the city code under
Chapter 165.
Q. As to whose obligation it is to review
and verify these?
A. That's correct.
Q. So, if I hand you a copy of that, you
can find that for me and tell me whose
responsibility that is?
A. Which one do you want me to --
Q. For purposes of identification I'm
going to Marc the Dyersville zoning regulations.
Oh, I guess it already is Petitioners'
Exhibit 3.
A. It's outlined on page 653 titled
under -- in page 653 it's paragraph 15,
Administration, Subsection A, starting with the
council shall.
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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?
A. I don't know.
Q. Do you know if the council reviewed
that Floodplain Permit Application to ensure
that all necessary permits had been obtained
from federal, state or local government
agencies?
A. Can you ask the question. I don't
understand it.
Q. Do you know if the council reviewed
that particular Floodplain Development Permit
Application to ensure that all necessary permits
had been obtained from federal, state or local
government agencies?
A. I don't know.
Q. Do you know if the council notified
adjacent communities and/or counties and the
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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?
A. It would be outlined in the minutes of
the city council meeting.
Q. So, it would have been something done
during the course of a public city council
meeting; is that what you're telling me?
A. Most likely.
Q. And if it wasn't done during a public
meeting, then the council wouldn't have done it?
A. Maybe not. Or I could have done it.
Q. In this case do you know if you did do
it?
A. I don't recall.
Q. Well, you'd certainly remember with
regard to that application whether or not you
secured those or you verified those things,
wouldn't you?
A. Not necessarily.
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Q. Would you keep some written proof of
that?
A. Not necessarily.
Q. I'm going to hand you Petitioners'
Exhibit 15. Do you recognize that document?
A. It's a document of the proposed
annexation boundaries for the City of
Dyersville.
Q. Do you know if those annexation
boundaries were approved?
A. Most likely.
Q. With regard to this Building Permit
Application, is the proposed site plan that is
attached to that Building Permit Application
located somewhere in this annexed property?
A. I'm sorry. I don't understand your
question. Can you ask it again.
Q. The site plan that's attached to this
Building Permit Application that the applicant
proposed, do you know if that site plan is
located within the boundaries of this annexation
map?
A. Most likely, yes.
Q. I'm going to ask you to take a pen and
circle, if you know, where the proposed
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development was going to be.
A. It's outlined in the Development
Agreement.
Q. 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
accurate.
Q. So, you're telling me you can't look at
this annexation map and indicate anywhere in any
close proximity as to where that proposed site
plan is going to be?
A. Not without verifying it through the
Development Agreement.
Q. Well, I'm asking you just to do an
estimation. Can you do that for me?
A. No. I don't feel comfortable doing
that.
Q. Can I see Exhibit 15, please? Would
you agree with me, and I'm pointing now to the
lower right-hand corner of this annexation, is
that the area identified as the current Field of
Dreams movie site? (Indicating)
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A. I'm sorry. Where are you pointing to?
Q. Lower right-hand corner.
A. You're talking about right here?
(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?
A. I don't know.
Q. Do you know who currently owns the
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,
purchased the property from for their proposed
project?
A. Well, according to here, it is Don and
Rebecca Lansing.
Q. So, would you agree with me, then, that
Go the Distance proposed development is located
somewhere within that Lansing property?
A. Can you ask the question again, please.
Q. Would you agree with me that the
proposed development of Go the Distance is
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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. Excuse me.
Q. So, you have a map in front of you.
Can you rely on that?
A. Not this particular map.
Q. But in order to get a specific
boundary, you would rely on a legal description,
wouldn't you?
A. Maybe.
Q. Mr. Michel, I'm going to have you look
at this annexation map, annexation boundary map.
You're familiar with when the city went through
the annexation process, aren't you?
A. In what regards?
Q. The whole process of annexation in this
particular -- with regard to this particular map
of boundaries. You're familiar with that,
right?
A. Somewhat.
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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
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.
A. I have no idea.
Q. You can't tell me anything about your
involvement in the annexation process other than
bringing it to the city council?
A. No. I, I can't answer that. I don't
know.
Q. Did you talk with anyone about annexing
property?
A. No.
Q. You didn't talk to anyone?
A. Not that I recall.
Q. Did you talk to Denise Stillman about
annexing property?
A. I don't know.
Q. Did you talk to any of the homeowners
in this annexation boundary about annexing
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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?
A. Just breakdowns of taxes versus --
county versus city is the only thing I recall.
Q. Who did you send that correspondence
to?
A. I don't know.
Q. Would it have been people affected by
the proposed annexation?
A. Maybe.
Q. Why would you have sent it to someone
that wouldn't be affected by the annexation?
A. I don't know. I don't have that in
front of me, so I can't answer the question
accurately.
Q. Would you be willing to provide
correspondence to your -- to counsel, copies of
that correspondence that you sent?
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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
condemnation with any of these people within the
annexation boundaries?
A. Possibly.
Q. You would have used that as a potential
method in lieu of a voluntary annexation?
A. Maybe.
Q. And that was all to fulfill the
obligations under the Memorandum of
Understanding, or what was the purpose of that?
A. I don't understand your question.
Q. Why would you have advocated for that
voluntary annexation? What was the purpose of
that?
MR. HENRY: Object to counsel's
characterization as advocacy. I object to the
question as being far beyond the scope of the
issues remaining for decision in this case. Not
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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)
A. Growth of the municipality.
Q. Growth of the municipality?
A. Growth of the municipality.
Q. So, based on the annexation map, you
wanted the municipality to grow in the manner
outlined in the boundaries?
MR. HENRY: Object. It's beyond
the scope of any issues in this case.
Q. Is that correct?
A. Not necessarily.
Q. What was the reason for the growth in
this particular area?
MR. HENRY: Same objection.
A. I'm sorry. I don't understand the
question.
Q. Your previous answer was, you wanted
the municipality to grow; is that accurate?
A. Not necessarily.
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Q. Why was the annexation process done
then?
A. In what regards? This here?
Q. Yes.
A. For growth of the municipality.
Q. And why did you want the municipality
to grow in this direction?
A. That was the city council objective.
Q. Do you know why the city council had
that objective?
MR. HENRY: That's a yes or no
question.
A. No.
MS. HESS: You don't have to
limit his questions to a yes or no answer. This
is --
MR. HENRY: The question was: Do
you know?
MS. HESS: If he has more than a
yes or no, he can certainly provide that,
though. You don't need to testify for the
witness. You can make your objection.
MR. HENRY: It was necessary to
interpose that in order to --
MS. HESS: No, it was not
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necessary.
MR. HENRY: In anticipation of a
further objection --
MS. HESS: You were trying to
limit his answer.
MR. HENRY: -- to your likely
follow-up question.
MS. HESS: Either make an
objection or --
MR. HENRY: I was making sure I
had the opportunity to make an objection for
what I was anticipating as your follow-up
question.
MS. HESS: You're limiting the
witness's testimony, is what you're doing.
MR. HENRY: Did you answer the
question fully?
MR. MICHEL: Yes.
Q. 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.
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Q. Who created this document?
A. John Danos from Dorsey & Whitney law
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.
Q. And what meetings did you have in
connection with the drafting of this
Memorandum of Understanding?
A. Just phone conversations.
Q. Who did you have phone conversations
with?
A. Denise and Michael Stillman and
John Danos.
Q. Do you remember the dates of those
conversations?
A. No.
Q. How many conversations were there?
A. Several.
Q. With regard to the annexation which is
listed as Roman numeral I, what was your
involvement in negotiating the annexation that:
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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. It has no
relation to building permit or floodplain
permit. It is not reasonably calculated to lead
to the discovery of admissible evidence bearing
on the issues remaining in this case.
Q. Go ahead and answer the question.
MR. HENRY: 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?
A. It appears to be.
Q. Would you have been negotiating the
terms of this document sometime prior to
June 18, 2012?
A. Possibly.
Q. Mr. Michel, in terms of this annexation
boundary map, are you aware of any commercial
development within the boundaries of this
annexation?
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A. I'm sorry. Can you ask the question
again.
Q. Are you aware of any commercial
development currently within the boundaries of
this annexation map?
A. I'm sorry. I don't understand your
question. What do you mean by "commercial
development"?
Q. Why don't you tell me what you think
commercial development is.
A. I don't understand your question.
Q. You're the city administrator, right?
A. Yes.
Q. In your role as city administrator you
deal with commercial development?
A. Yes.
Q. What does that mean to you?
A. Commercial activity.
Q. Based on that knowledge and what you've
just told me, if you look at this annexation
map, inside the boundaries do you know of any
commercial activity, commercial development?
A. It appears to be the Field of Dreams
movie site.
Q. What else?
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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.
Q. Well, let's take each parcel one by
one. Starting all the way over at the far
right-hand side of this map as you're looking at
it, start with the top right-hand parcel. Is
that farmland based on --
MR. HENRY: I object. Calls
for -- it's inquiry into matters that are far
beyond the scope of the issues remaining for
decision in this case. It's not reasonably
calculated to lead to admissible evidence. It's
irrelevant to the issues remaining in this case.
I instruct you not to answer.
Q. Mr. Michel, is it fair to say, when you
look at this annexation map, a large majority of
the property is farmland?
MR. HENRY: I object. Same
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objection. We're here about a building permit
and a floodplain permit and that's all. It's
irrelevant.
Q. You can answer the question.
MR. HENRY: No. Don't answer it.
MS. HESS: I think the deposition
is over then. We'll have to have a court
hearing on the remaining issues. I want to
reserve the right to revisit all the issues in
CVCV 101023 and CVCV 057723.
(Deposition was concluded at
11:57 a.m.)
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C E R T I F I C A T E
I, the undersigned, a Certified ShorthandReporter of the States of Iowa/Illinois, dohereby certify that there came before me at thetime, date, and place hereinbefore indicated,the witness named on the caption sheet hereof,who was by me duly sworn to testify to the truthof said witness' knowledge touching andconcerning the matters in controversy in thiscause; that the witness was thereupon examinedunder oath, the examination taken down by me inshorthand, and later reduced to Computer-AidedTranscription under my supervision anddirection, and that the deposition is a truerecord of the testimony given and of allobjections interposed.
I further certify that I am neither attorney orcounsel for, nor related to or employed by anyof the parties to the action in which thisdeposition is taken, and further, that I am nota relative or employee of any attorney orcounsel employed by the parties hereto orfinancially interested in the action.
Dated at Dubuque, Iowa, this 2nd day ofJanuary, 2014.
CERTIFIED SHORTHAND REPORTER.
