Ordinance Violations/Illegality

 The construction of the NE 18^th Overpass as proposed in the NE 18^th Feasibility Study is illegal and would violate numerous county ordinances. According to information contained within the NE 18th Street Feasibility study construction would violate Polk County ordinances in subsection J, item 4a and several items in 4d: 

• According to the vertical profiles in the feasibility study fill depths in some areas of the floodplain exceed 32 feet, 27 feet over the allowed limit of 5 feet. 
   

• The cross-sectional area of the flood plain appears to be reduced by approximately 35%, approximately 14 times the amount allowed.
   

• Fill will be placed within 25 feet of the floodway which is not allowed. If Polk County were to collaborate with the City of Ankeny on the NE 18th Street Overpass project they would have to disregard these ordinances and ignore subsection “D” compliance. 

Additionally,  information contained within the NE 18th Street Feasibility Study authorized by the City of Ankeny, places the proposed overpass road so close to the Scott Campbell primary residence that it will violate county setback rules. The house must be setback at least 50 feet from the right-of-way in Polk County.  The right-of-way will be nearly 30 feet too close to the house.

Critical Engineering Data has not been Obtained

As indicated by the NE 18th Feasibility Study it is necessary to obtain soil samples. From the NE 18th Feasibility Study authorized by the City of Ankeny:

 VII.  RECOMMENDATIONS

An extensive field survey will need to be completed prior to final design for the preferred alignment.  The survey will increase accuracy for earthwork volume calculations and provide boundary retracement for acquisition and easement plats.  

We recommend exploring an option to excavate borrow from the floodplain area north of the proposed alignment and west of Interstate 35.  This area is in the Fourmile Creek floodway and is therefore undevelopable.  One drawback would be obtaining borrow on the east side of Interstate 35 without a long haul route.  It may be necessary to have two borrow sites for this project.  The western floodway borrow site will supply material for roadway embankment and the Interstate 35 Bridge berm west of Interstate 35 and the eastern floodway borrow site will supply material for the eastern road embankment and bridge abutments.  An extensive soil survey would need to be completed for the borrow area(s), roadway corridor, and all bridge abutments.  Another recommendation is to incorporate the NE 18  Street extension with the East 1st Street and NE 36  Street IJR.

Borings are certainly required for the bridge abutments and in areas requiring large amounts of fill, such as the approaches. The City of Ankeny has not obtained subsurface borings at the proposed overpass construction site on the east side of I-35 on the Scott Campbell property. Snyder Engineering staked out locations of critical boring samples that were required on the property at 2480 NE 102nd Avenue. All of the requested samples were within 330 feet of the primary residence and have not been taken.  The borings are necessary for verification of the feasibility of the project. Section 314.9 Entering Private Property of the Code of Iowa will be strictly adhered to concerning this matter. Section 314.9 states that, “No such soundings or drillings shall be done within twenty rods of the dwelling house or buildings on said land without written consent of owner”.

Right-of-Way

Due to the numerous violations of Polk County ordinances previously discussed and due to its inability to obtain critical engineering data the City of Ankeny will not have the power to exercise eminent domain which will be required to assure acquisition of the necessary right-of-way for the project.

From the code of Iowa section 6B.2C Approval of the Public Improvement 

The authority to condemn is not conferred, and the condemnation proceedings shall not commence, unless the governing body for the acquiring agency approves the use of condemnation and there is a reasonable expectation the applicant will be able to achieve its public purpose, comply with all applicable standards, and obtain the necessary permits.

Section 6B.2C Approval of the Public Improvement of the Code of Iowa shifts the burden from landowners to the acquiring authority to prove that there is a reasonable expectation that the acquiring authority will achieve its public purpose, comply with all applicable standards, and obtain the necessary permits. The sanction for failure to meet these standards is the loss of the acquiring authority to use the power of eminent domain. The City’s engineering plans for the NE 18^th Overpass project do not conform to applicable standards and will violate Polk County zoning ordinances.  The property in question lies outside of the corporate limits of the City of Ankeny. 

Finally, the NE 18th Feasibility Study includes plans for a recreational or bicycle trail. Limitations have been placed on section 364.4 of the Iowa Code with the passing of HF 2351. The use of eminent domain outside of the city limits is not permitted for the construction of bicycle paths or recreational trails. Since there is no mention of recreational trails being allowed in eminent domain procedures in the HF 2351 amendment to 364.4 the bicycle trail detailed in the City of Ankeny’s NE 18th Overpass project will not be allowed in eminent domain procedures outside of the corporate limits. This would disallow the proposed project in its current form, since Iowa code section 6B.2C would prevent the use of eminent domain in cases where Iowa law is violated.
 

The Des Moines MPO’s Obligations and Tactics

The MPO has employed the services of attorney Jonathon Wilson in an effort to disregard and absolve themselves of the responsibility of the issues discussed in this webpage. Download a detailed discussion of the issues here.  Please review an annotated copy of the letter sent by the MPO and Jonathon Wilson by clicking here. The MPO is refusing to discuss and resolve the issues and is more interested in expending resources by utilizing a lawyer which has a reputation, according to many of Iowa's citizens, of trying to withhold critical information from the public. Jonathon Wilson is the controversial lawyer who was trying to justify the limitation of access to public meetings and information in the CITEC scandal. Since the MPO is intimately involved in the federal funding process for the NE 18th Overpass project it is difficult to understand why the MPO feels they should not be involved since they administer and approve applications for federal funding.  Please review some of the articles and comments discussing Jonathon Wilson.

From Statehouse Straight Talk:

"The media interest was spurred by Wilson’s efforts to limit legislation passed in the wake of the CIETC scandal that requires joint government entities working under 28 E agreements to publish financial data, including salaries, in newspapers. Mr. Wilson doesn’t believe that the taxpayers have any right to know what CIETC and other types of joint government agencies do with our tax dollars."

whotv.com May 10, 2007 (AP):

Agency spokesman Jonathan Wilson calls the new law "ineffective, knee-jerk window-dressing" by lawmakers.

From the Des Moines Register:

The attorney for the Central Iowa Employment and Training Consortium has refused to make public copies of his law firm's bills to the government agency.

On Jan. 12, The Des Moines Register asked CIETC for copies of bills from the law firm of Davis, Brown, Koehn, Shors & Roberts, which employs CIETC's hired attorney, Jonathon Wilson On Monday, Wilson responded to that request by saying he believed all of CIETC's billing statements from his office are "attorney work product" and thus not required to be disclosed under the Iowa Open Records Law.

He told the Register that any billing statements related to litigation or legal claims "will not be released to you absent specific authorization to do so by the CIETC board."

Wilson said he was unable to discuss the matter with the CIETC board at its last meeting, but said he would be willing to do so at the next meeting, which is scheduled for Feb. 15. Any board discussion over whether to make the bills public would likely be in closed session.

Wilson said he would be willing to release copies of legal bills that relate to nonlitigation matters such as general legal work. However, he said those billing statements would have to be reviewed and redacted, and the Register would have to pay "my discounted hourly rate of $210 an hour" for that work to be done.

Typically, a private company that bills a government agency like CIETC for its services doesn't have a say in the agency's decision to make public the company's billing statements. But as CIETC's legal adviser, Wilson can bill CIETC for his services and also recommend that those bills be kept confidential.

As of December, CIETC's legal fees totaled more than $297,000, and they currently represent the agency's biggest ongoing expense, averaging $1,200 per day.

Many of CIETC's legal expenses are tied to the agency's refusal to pay back the state $1.5 million that it allegedly misspent on salaries. It's expected that central Iowa taxpayers - particularly those in Polk County - will wind up paying those legal fees.
 

It is my opinion that the MPO is obligated to review the feasibility and legality of the NE 18^th Overpass project once the agency has been notified of complicating issues.  It would also be irresponsible to allow the submission of an application for federal funding with incomplete or misleading information.  I also feel it is inappropriate for the MPO to be expending public resources to avoid discussing the issue rather than trying to resolve the issues discussed in this webpage before an application for STP funding is submitted.  The more the Des Moines MPO and the City of Ankeny try to avoid this matter the more the appearance of collusion between the two parties in regards to the STP funding process may be strengthened.

An Open Invitation to the City of Ankeny and the Des Moines MPO

If my allegations concerning the illegality and feasibility of the NE 18th Overpass are incorrect,  I encourage the City of Ankeny and the Des Moines MPO to please contact me here and provide evidence that will clarify the issue and/or resolve the problems.  I am genuinely interested in a resolution and will correct any factual errors which can be proven to be erroneous on this website.

Please contact the Des Moines MPO and urge them to resolve the issues surrounding the NE 18th Overpass and not allow the City of Ankeny to apply for federal funding for a project that does not appear to be feasible and that proposes the illegal act of breaking numerous county ordinances.

Contact Tom Kane at this email address.
The Des Moines MPO Webstie can be found here.

Download a detailed document discussing the illegality & feasibility of the NE 18th Overpass here.

* If you find any inaccuracies please notify me through the contacts menu under Ankeny Watch