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“I love this ground”

Local property owner fights City of North Liberty against eminent domain

CORALVILLE– Gary Weinman’s three children grew up on a pristine Johnson County acreage surrounded by farm fields. The family hiked and played in the timber among stands of mature trees where deer, foxes and wild turkeys still roamed unmolested. They waded barefoot in Muddy Creek for reprieve from the hot summer and skated across its frozen surface in winter. They worked to return five acres of row crops, through reseeding and restoration efforts, back into a rolling prairie landscape, ripe with native Iowa grasses and flowers as beautiful as they are ecologically important. In the center of the prairie, under two intertwining trees, (shown at left) Weinman’s daughter was married.
Today, Weinman would like the same opportunities for his grandchildren.
“We spent a lot of time outside. We walked the property every day,” said Weinman. “I’ve expended a lot of time and money fighting off the invasive species, maintaining the woods and making sure there are seven dead trees per acre for the wildlife.” A former member of the Nature Conservancy and a contributor to the World Wildlife Fund, protecting the natural character of the land is important to Weinman.
“For me, this property is like... Yellowstone. Yosemite. It’s heaven. I don’t think there’s a lot of land like this around here, so I feel great responsibility to it. I don’t like this ground; I love this ground,” he said.
Now, a portion of Weinman’s property– a 30- to 40-foot wide swath that follows the Muddy Creek basin and crosses the restored prairie– is under threat of being accessed by the City of North Liberty through eminent domain.
Weinman filed a legal petition Nov. 26, hoping to block that seizure and impel North Liberty to follow a different route.
Though Weinman’s property lies in the unincorporated area of Johnson County and carries a Coralville address, North Liberty seeks both a temporary construction easement and a permanent access easement across Weinman’s acreage in order to construct a 2.3 mile-long sewer line that would serve a new high school, proposed to open in 2017. The Iowa City Community School District (ICCSD) purchased 75 acres near the intersection of Dubuque Street and North Liberty Road in March 2013, and the site came into North Liberty’s municipal boundaries when the city annexed 625 acres of the area in April.
Since the district’s purchase, developers have approached the City of North Liberty to propose new mixed-use development– for both residential and commercial construction– around the school site, and city officials have been making tracks to bring public utilities to the area in time for the school’s anticipated fall 2017 opening.
In November 2013, the city contracted with Fox Engineering to determine possible ways to make that happen. Six months later, Fox Engineering returned a report proposing a sewer route across Weinman’s and 12 other properties as the least expensive and most feasible.
At that time, John Gade of Fox Engineering told the council an alternative route was available, but because pipes would have to be buried deeper in the ground– between 50 and 60 feet deep, instead of 10 to 15 feet– construction of the sewer line would be more expensive by about $1.5 million.
The alternative route Gade spoke of would have followed the same alignment as a future extension of Forevergreen Road from its existing intersection with 12th Avenue east all the way to Dubuque Street.
The potential for a new sewer line to follow the future roadway factors significantly into Weinman’s case, as do circumstances dating back nearly nine years.
In 2006, when the City of Coralville wished to extend Forevergreen Road eastward, three routes were considered. An environmental impact study by EarthTech Engineering– now AECOM– found that Weinman’s property was home to a type of ornate box turtle as well as the Indiana bat, both protected species. The endangered Indiana bats that roost over the summer months in the shagbark hickory trees on Weinman’s land are especially sensitive to fragmentation of their forested habitats, according to the U.S. Fish and Wildlife Service. The ornate box turtle is one of just two terrestrial turtle species native to the Great Plains, and is categorized as an imperiled species due to significant loss of its natural habitat to human encroachment.
“When they wanted to put the road through (in 2006), the environmental impact statement said those endangered species would be harmed, so they had to choose a northern route around the prairie,” said Weinman. After that finding and prolonged citizen outcry, Coralville dropped its road plan until it was revived jointly with the City of North Liberty in 2013. The two cities collaborated on a new alignment study, using Earth Tech’s previous report as a starting point.
“That environmental impact statement hasn’t changed,” Weinman said. “It seems like the city is proceeding without the background information they need.”
Two new studies specific to the proposed sewer project were conducted by Griggs Environmental last fall, and North Liberty City Administrator Ryan Heiar said the studies reported no concerns. Further, Heiar said, U.S. Army Corps of Engineers personnel also walked through the area.
“They did not find any federally endangered species, so they are saying there is not an issue out there,” Heiar said.
While Griggs’ November 2014 habitat assessment report on the Indiana bat did in fact conclude that the “project as designed is not likely to negatively affect any Indiana bats or their habitats,” the report also stated that Weinman refused access to his property, therefore his land was not included in that study. Only surrounding properties were evaluated.
As for denying access to Griggs’ firm, Weinman maintains that nobody contacted him to seek permission to enter his property for either the Indiana bat study or a wetland report conducted by Griggs in August 2014. That wetland study did evaluate Weinman’s property and all areas along the project corridor, and recommendations stated that, to minimize impact on the project’s adjacent wetlands, sewer and potable water lines should be designed to avoid the wetland on Weinman’s property adjacent to Muddy Creek.
To date, no other environmental studies have been conducted, Heiar confirmed, including no new impact studies related to the box turtles.
There are still additional analyses to be made, Heiar noted. The Iowa Department of Natural Resources will review the city’s permit and identify any concerns they have for the natural area.
“We’ll be expected to comply with those and take the necessary steps they identify,” said Heiar. “In addition, we did a tree survey on the shagbark trees that are habitats for the Indiana bats, so those have been identified. In order to make sure we don’t harm any bats, if (those trees) are in the way of the project, they will have to be removed between October and March. So we are taking all the steps required of us, and we wouldn’t have it any other way.”
Heiar pointed to the city’s multi-million dollar investment in its state-of-the-art wastewater treatment facility as an example of the city’s commitment to environmental safety.
“We all live in this area and we want to make sure it’s protected,” said Heiar.
Weinman is as unconvinced about the city’s worry for the area’s ecosystem as he is suspicious that using a different firm to do a new study is a strategy to get the outcome the city seeks– one that says constructing a sewer line poses no risks to the species living there.
“In one of my meetings with Mr. Heiar, I asked about the turtle, and he said the sewer wouldn’t endanger a turtle like a road would. How does he know that? They are going to use a lot of heavy equipment. How could that not affect the turtle? It’s like they have already made up their minds.”
Actions were taken prior to discussions with Weinman. In May 2014, even as the North Liberty City Council okayed Fox Engineering’s recommended route for the estimated $5.825 million sewer and water project, Weinman had not been apprised of the plans being made that involved his family’s and 12 neighboring acreages.
It wasn’t until June that a certified letter was sent to Weinman stating that a preliminary design for the project indicated an easement request could be forthcoming. According to Weinman, no other communication between himself and the city occurred until this fall, when a friend discovered surveying stakes and trees painted with pink spray paint, marking a path across Weinman’s prairie and along the creek’s banks.
Since nobody had requested permission to access his property, Weinman contended, he called the Johnson County Sheriff’s office to report trespassing.
“They said it wasn’t trespass. They referred me to the North Liberty Police Department, and then (the police department) referred me to (North Liberty Streets Superintendent) Don Colony. He apologized, said he was sorry they didn’t give Fox Engineering permission to do that without contacting me, and he came and pulled up some of the stakes,” Weinman recounted.
In a Dec. 15 telephone interview, North Liberty City Attorney Scott Peterson said the incident was “at worst case, unfortunate.” No damage was done when engineers conducted the survey, Peterson added.
“We thought we were there to help Dr. Weinman identify more precisely where the route was. Apparently, there was miscommunication about whether we had permission,” Peterson said. “It wasn’t something we went to do just on our own. We went to assist him. There was certainly no intent to wrongfully go on the property.”
Regardless of the city’s intent, at least one local expert on habitat restoration shares Weinman’s concern for significant damage to the prairie’s ecosystem. David Novak of Prairie Oak Restoration, LLC, in Cedar Rapids, has been helping Eastern Iowa landowners manage and restore their properties since 1998.
“Because of the deep, diverse and dense plant root system characteristic of prairies, water and carbon are sequestered, wildlife find food and places to reproduce, and aesthetic appeal creates positive life spaces for human and animals,” Novak said. While Weinman’s prairie was once crop land, in the late 1980s, it became part of an Iowa Department of Natural Resources (DNR) program to encourage private property owners to preserve the state’s natural areas and re-establish habitats for Iowa’s native plants and animals, including the tall grass prairies that once dominated Iowa’s landscape.
Weinman eagerly participated in the lengthy and arduous process of restoring the prairie, formerly a soybean field farmed by the late Frank Colony. Colony, whose estate included 28.8 acres of land the city purchased at $30,000 an acre from Four D’s Acres LLC in August for a future wastewater plant expansion, actually used his farming equipment to sow the very seeds the DNR provided to re-establish the prairie, Weinman recalled.
Novak said a sewer project will definitely alter what has been a 30-year work in progress.
“The prairie plants’ root zone will be disrupted by this excavation,” said Novak. “Dr. Weinman’s prairie has grown to its current healthy status through seed germination and significant root spread.”
Although Weinman was told the prairie will be put back the way it was, Novak said changes would be unavoidable.
“The soil will be returned to its original site, but the soil profile will change as a result. Any underground freshwater springs will be redirected. The excavated area soil surface can be furrowed and hand-broadcast seeded, or made smooth and drilled with Iowa native local ecotype seed, and steep areas will need to be correctly stabilized with erosion matting properly secured following reseeding,” Novak said.
Even Fox Engineering, in its October 2014 comparison of the two possible sewer line routes, acknowledged a downside to crossing the prairie.
“Prairie grasses are disturbed due to construction and will require replanting. The planting of prairie grasses is difficult to establish and could take years of maintenance,” the report states.
In short, it has taken a great deal of work and time to bring the prairie to its current healthy state, and excavation of this magnitude could quickly undo it.
“In addition to working the woods all these years, I’ve been nurturing that prairie, planting pine trees, burning it every year. Students from the environmental program at Kirkwood Community College come out and help with the burn. There has been a lot of work, time and expense to maintain it. It’s about as close to prairie as you can get in this ‘prairie state,’” Weinman said.
And that’s another big problem with placing a sewer pipe just under its surface, Weinman believes.
On one hand, city officials say there are currently sewer lines under Muddy Creek in another location, and they have encountered no problems so far.
On the other hand, the city’s biggest argument for not following the alternate route is its depth and associated expense; at 50 to 60 feet below ground, maintenance costs increase greatly.
Weinman finds the city’s logic contradictory.
“If they are saying the sewer could break and it would be costly to repair, they are really saying something could go wrong,” Weinman said. And this particular sewer line would be placed in a flood plain that drains into the Coralville Reservoir. “What happens if the sewer breaks beside the creek? It would be an environmental disaster. It would pollute not only Muddy Creek, but all the way down to the Iowa River.”
On Tuesday, Dec. 9, the North Liberty City Council– members of which are individually named in the petition– voted unanimously to proceed to obtain the easement through any means necessary, including condemnation. There was no deliberation among the council, other than councilor Brian Wayson asking City Engineer Kevin Trom to elaborate on the greater cost of the alternative route.
At a special meeting Monday, Jan. 5, the North Liberty City Council unanimously voted to proceed to set condemnation hearings for easements on Weinman’s parcel and on two other properties owned by Barbara Beumont and Jeff and Linda Wilson.
“It was like a kangaroo court,” said Weinman. “You knew right away their minds were made up and they weren’t going to listen to anyone. I don’t think it’s the public’s good they are interested in. I am suspicious they are protecting developers.”
Weinman argues that the city’s cost for public infrastructure could be assessed to future developers, decreasing the expense for North Liberty taxpayers.
Heiar acknowledged the city recoups infrastructure costs through tap-on fees as development occurs, as in the case of the city’s west trunk sewer. But Attorney Peterson said there is misunderstanding on the part of Weinman’s legal representation, Cedar Rapids attorney Richard Pundt, regarding development impact fees.
“The disconnect is, I don’t think Mr. Pundt understood what the city’s policies are in terms of development costs and how they are calculated and how they are disbursed over given projects,” Peterson said.
Heiar said whatever path the new sewer line takes, developers will pay tap-on fees that are established by the factors of each project and based on a per-acre charge.
“So when a developer comes on, he is going to pay that per-acre fee, and that will happen all along the basins this pipe will serve. Ultimately, the fees will be collected when properties develop,” Heiar explained.
The school district is no exception, Heiar insisted; it will pay tap-on fees like other developers. Whether or not the district will share in the initial outlay for the construction and installation of the public utilities in this scenario– a point raised by Heiar when the city first learned of the high school’s planned site– is still under discussion, Peterson said.
Just how service gets to the future high school is secondary to some people, like parent Jessie Williams, of 185 Whitman Ave. in North Liberty. She came to the council’s Dec. 9 meeting to ask them to use their power to expedite getting utilities to the new school.
“We need sewer out to the high school site, and it needs to go now. It has to go under somebody’s property, period,” Williams said. “I’m here to advocate on behalf of the kids that are currently overcrowding both our high schools in our district, and on behalf of the younger kids that the future of North Liberty holds, like my kids. We know that overcrowding is going to get worse. I’m here to advocate for the option that will get the sewer to the high school the soonest.”
How soon that will be will depend largely on the outcome of Weinman’s lawsuit, which seeks permanent injunctive relief to keep the city from condemning his land, and court-ordered intervention to direct the city to find an alternative route.
In order to save the city from the $1.5 million expense of the alternative route, North Liberty has hired attorney Matt Novak, of Cedar Rapids firm Pickens, Barnes and Abernathy, to address the petition, and Peterson said he expects to work with a third attorney on the condemnation hearing. Peterson filed an answer to Weinman’s complaint Dec. 23.
Weinman said he carefully considered Williams’ comments after the council meeting, and wanted to be clear that his intent is not to hold up progress on the high school.
“I’m not opposed to the high school. I want the high school. It’s just that there is an alternative (route), which they say would be more costly, and I’m not sure that’s true. They haven’t really shown any figures to that effect,” Weinman said.
Further, he said, exercising eminent domain does not truly benefit the public.
“I don’t think it’s in the public good for a government to do whatever they want to your property, whenever they feel like doing it, without any regard to your feelings about the land. If there was no alternative, that would be a different story. But they have an alternative,” said Weinman.
Whether or not those alternatives come to bear, Weinman hopes his legal action will at least force the city to defend its reasons for seeking permanent access to this particular prairie land and wetland no matter the costs: environmentally and otherwise.
In one meeting with the city before he filed his petition, Weinman said he was offered $15,000 for a permanent access easement. He declined the offer.
“I don’t want their money. I’m going to an expense to try to protect my property, to keep it as beautiful as it is. There is no financial interest in any of this for me,” said Weinman. “I just want to protect my land, and everything that lives here.”
In his eyes, that includes the children who will attend the future Liberty High School, the ostensible reason for this fight that has escalated to a legal battle over the lawful powers endowed to one local government and the rights of a person living outside its jurisdiction.
“I have to wonder if they will teach at the new high school that private citizens can be bowled over for the profit of private corporations and developers,” Weinman said. “If that high school is built on that principle, it will be the legacy of that school forever. I wonder what people think about that.”