|News/Features - Feature Stories|
|Wednesday, 06 June 2001 18:00|
For a year and a half, Davenport citizens have been witness to the ongoing saga of Niky Bowles versus the City of Davenport, as Bowles has attempted to rezone 10 acres of property her family owns as Cypress Points Developers just south of 53rd Street on Eastern Avenue.
“My husband Tom and I have filed two lawsuits against the City of Davenport,” she said. “The first is a discrimination lawsuit that was originally filed with the local Civil Rights Office. The office recommended it go to the state for investigation. I believe discrimination against my family has been going on for a year and a half and it is not about to stop. The Iowa Civil Rights Commission now has the case. They are looking for all the documentation relative to the issue from me. Once they receive this information, they will make their decision as to how to proceed.”
The civil rights lawsuit alleges, among other things, that developer Bowles is being discriminated against because she is a woman, and because her national origin is Greek. The suit alleges that Bowles has been discriminated against and held to rules and regulations that other American born male developers are not. The suit also alleges that developer Bowles is treated inappropriately compared to her male counterparts, and that she is being denied commercial zoning for her 10 acres while other developers are recipients of commercial zoning in the same vicinity for much larger parcels, with far less hassle even though such zoning will have a far greater impact on the community. Finally, the suit alleges that the city “continually opposes the request to rezone the property of Complainant [Bowles] by presenting false and misleading information about traffic control, development, and other legal requirements.”
“The discrimination really became apparent when Planning & Zoning Commission chairman Donna Bushek arbitrarily changed the rules of the process when it was my turn to present my petition,” Bowles said. “Chairwoman Bushek forced an unprecedented vote to take place that reduced my ability to present my zoning petition to five minutes. This same time limit was imposed on my attorney Jerry Pepping during his oration before the board. I believe that this time limitation was a new rule that Chairwoman Bushek crafted specifically to restrict me in pursuing my zoning petition. The fact that developer THF Realty was permitted to give a presentation following mine that lasted nearly an hour supports this allegation. The new five-minute rule did not apply to that developer. If this is not discriminatory, what is?”
Chairwoman Bushek claimed that the five-minute time limit only applied to petitions that had already been heard by the Commission, ones that did not contain new information. This criteria was used to implement the time constraint on Bowles and her attorney, but was ignored for THF Realty and its representatives. Because neither party was presenting entirely new information relative to their petitions, Bowles claims discrimination is the only appropriate description of their conduct.
But Planning & Zoning was not the beginning of the Bowles family’s ordeal. It really began in earnest back when Bowles was sued for “separation of partnership” by real estate developer Rob Fick. Originally, Bowles and Fick jointly owned the 10 acres via a partnership—Eastern Avenue Partners (EAP). In the fall of 1999, attorney Steve Schalk, acting as counsel for EAP, petitioned the city to rezone the 10 acres from agriculture (A1) to commercial (C1), unbeknownst to Bowles, and without her consent or approval, as Bowles as contended on numerous occasions. Meanwhile, according to Bowles, Fick notified her, claiming to have a buyer for the property contingent on residential (R1) zoning. When Bowles learned that a petition had been filed with the city to rezone her property, she assumed it was for R1, based upon the potential sale that Fick had apprised her of. Bowles claims that when she asked Fick who the buyer was, and what the sale price was, she was ignored. One thing led to another and relations broke down between the partners. To resolve things, Fick filed a suit against Bowles to sever their partnership.
Meanwhile, Schalk’s petition for C1 had passed the first reading with the city council and was about to be passed with the second and final reading when Fick and Bowles jointly requested it be tabled. The request to table any further action on this zoning petition for C1 was granted in December 1999. Had it passed at the time, it would have been one of 80 plus illegal zonings throughout the city.
The following July, Fick’s suit to dissolve the EAP partnership came to trial. His attorney asked the court to order the property sold, preferably at auction by Fick’s company’s own auctioneer. Their side argued that there would be no point in Bowles going back through the planning and zoning process to continue with the C1 zoning petition because Bowles had alienated city officials and they would not likely be willing to grant the petition as a result. The judge flatly refused this request and awarded complete control of the property to Bowles, citing her right to pursue due process as a constitutional matter that the judge in no way would restrict.
Then a very curious thing happened. Fick’s attorney requested that the judge include in the court order that Bowles not be allowed to sue city officials if she did not get her desired zoning. The judge also refused this request, again citing that he had no intention of taking away her First Amendment rights. The question remains today: Why did Fick’s attorney feel it necessary to try to protect city officials against a potential future lawsuit over a zoning request that his own client had initiated? Did he have a crystal ball? How did he know that the city would deny such a request in the future?
“I believe that Fick and Schalk have enough pull with city officials to make sure I don’t get the best zoning for my property,” Bowles conjectured. “They made up their minds when they realized the case wasn’t going their way that I would never have such zoning. It was all right for them to have it, but not for me. Alderman George Nickolas admitted [and the Reader confirmed with Nickolas] that when it was Schalk requesting the zoning, he had the necessary votes on the city council for C1. But when I came forward with precisely the same request, it was now being denied. Why? Because I am a small developer, a female, and of Greek origin. What other reason could there be? I suspect that Fick wanted to buy my half of the property for a lower price that reflected residential zoning, then turn around and sell the whole parcel for the higher price once he got it zoned commercial. I believe he attempted to screw me financially, but the judge stopped him cold.” As a result of these proceedings, Bowles filed a complaint with the Iowa Supreme Court Board of Professional Ethics and Conduct against Schalk. She also filed a complaint with the Iowa Real Estate Commission Board of Ethics against Fick.
Some would argue that Bowles has made enemies at Davenport City Hall all on her own. Her relentless pursuit of her own zoning has exposed several improper actions, such as the 83 illegal zonings that had to be remedied by the Iowa State Legislature. She repeatedly appears before the city council with accusations, allegations, and criticisms, most of which the council rarely, if ever, challenges. The public has learned to respect Bowles’ research as thorough and reliable, evidenced by the many letters and phone calls she receives. She has gained broad-based support for her efforts to stand up to city hall and their disturbing conduct toward her. In an attempt to silence Bowles, the council voted to censor the “Public with Business” portion of all council proceedings, but to little avail.
After one and a half years, Bowles has finally taken her plight to the courts, where she hopes to get justice. She is adamant that at least six aldermen (McGivern, Sherwood, Moritz, Brown, Englemann, and Caldwell) have continued to discriminate against her, evidenced by what Bowles alleges are their “lawless actions” relative to her zoning petition.
After much debate between city staff, council, and developer Bowles, the result was an amendment to Bowles’ petition from C1 to partial C1 for the frontage property and C0 for the remaining back portion of the land. A point of interest is that the original C1 zoning petition submitted by Bowles agreed to so many restrictions that it actually rendered it much closer to C0 zoning than C1 anyway. The difference between the two categories reflects small retail and office space versus large, big box retail, auto shops, etc. Bowles had already agreed to no big box retail, or to allow convenience stores, auto shops, or fast food restaurants, among other things. However, by keeping the C1 designation even though the restrictions were attached, the selling price differential of the two categories is significant, so she was trying to maximize the profit on her land. But to expedite her zoning, Bowles finally agreed to a compromise of a combination of C1/C0, and this was the amendment she sought for her petition.
Which brings us to Bowles’ equity lawsuit against the City of Davenport, which will be heard in District Court. Bowles alleges in this suit that the city acted against its own ordinance when the council wouldn’t allow her to amend her zoning petition. On April 2, Bowles’ attorney sent a letter advising the city that she was amending her petition from C1 to a combination of C1/C0. During the following council meeting, aldermen were proceeding to vote on her original petition for C1 for the final consideration. At first, they refused to acknowledge the amended version. Bowles’ attorney pointed out that ignoring the amended petition was in direct conflict with procedure, then inquired when, if ever in the history of the council’s proceedings, had they voted against the wishes of the petitioner on an original petition once it had been amended? Corporate counsel John Martin suggested that council acknowledge the amendment, which it finally did. It was at that juncture, however, that the council appeared to ignore city code by immediately voting down the amended petition before it had a chance to go back to Plan & Zoning.
Davenport Municipal Code Chapter 17.60.030 states, “Whenever any amendment, supplement, change, modification or repeal of this title [current zoning, which in Bowles case is agriculture-A1] is proposed, such proposed amendment, supplement, change, modification, or repeal shall first be submitted to the city plan and zoning commission…which shall within 30 days after the date of the receipt of the proposed amendment, supplement, change, modification, or repeal report back to the city council by either approving or disapproving such proposed amendment, supplement, change, modification, or repeal.”
Developer Bowles was denied this specific due process. Add to the list of infractions the fact that the council would also not allow her to table her zoning. No one can seem to recall when any other petitioner has ever been denied a request to table zoning until now. Bowles alleges that by denying her due process to amend her zoning and violating its own ordinance [17.60.030], the city has behaved in an arbitrary and capricious manner toward her. The court will determine if she is correct in these allegations. Because the suit has two points of issue—procedural in not allowing her amended petition to go back to P&Z; and for a judge to review the council’s decision to vote down her zoning as arbitrary and capricious—Bowles is seeking a twofold remedy. If the judge decides in her favor on the procedural issue, her amended petition will be resurrected and will have to be re-submitted to P&Z. If a judge decides in her favor relative to the council’s decision to vote her zoning down, it will act as a reversal of its decision and allow her property to be zoned C1/C0 as her amended petition requested.
Bowles emphatically points out that this “flagrant lack of regard for the process suggests that the council is willing to discriminate against me, a small developer who is also a Greek woman, at all costs, even at the expense of the law.”
Bowles claims the worst offenders are Aldermen McGivern and Sherwood, whose conduct toward this Davenport citizen has been widely criticized, both by those opposed to Bowles’ zoning petition and those who support her efforts. McGivern publicly called her a “freaking crazy women,” reducing her daughter to tears as she stood by her mother’s side in council chambers during a council meeting. According to Bowles, both McGivern and Sherwood have consistently used bullying tactics against her, such as strict time limits, constant topic constraints, and overt contempt in their attitudes and conduct toward her. “Many times, when I try to question things, they order me to sit down like a dog. It is humiliating and degrading for them as much as me,” Bowles indignantly stated. “McGivern drums up 10 typewritten names without signatures to oppose my zoning from people who are not within the legal boundaries to protest. Even so, several of them told me they were unaware McGivern was using their names. He claimed he would bring a new professionalism to the council, but he has failed miserably. He has opposed nearly everything I have proposed.” The public, whether they agree or disagree with Bowles zoning petition, has been opposed to the way she is treated publicly by Davenport’s elected officials.
In discussing Bowles’ conviction that she is being discriminated against, and that the council acted in an arbitrary and capricious manner toward her, her rationale is compelling. Her property sits very near 53rd Street, and the property adjacent to hers that actually fronts 53rd is also zoned C1. City officials considered it appropriate to zone that property commercially, even though it departed from the Comprehensive Land Use Plan (CLUP). The council has since rezoned much larger parcels located near the Bowles property from agriculture to commercial for developers such as THF Realty, and myriad other owners who have developed property along 53rd Street and Eastern/Elmore Avenues. Not to mention the city’s own acreage located diagonally to the north which is zoned M3 (industrial). Yet the city uses the rationale that zoning Bowles’ property C1 is not in keeping with the CLUP and that the property should reflect transitional zoning from C1 to the north down to R2 to the south. The city has also claimed that the school district, which owns 18 acres directly south of Bowles, wants to build a school there and C1 would conflict with that use. However, the school district has consistently denied any plans to build a school at that location, claiming that the parcel is too small. This is further evidenced by the school district’s attempts to negotiate the purchase some of the city-owned land at 53rd and Eastern for a new school.
Possibly the worst case of “good for the goose but not for the gander” is reflected in the Plan & Zoning Staff Report (February 13, 2001) that noted a “10%” reduction in population during the 1980s, claiming that as a result “the city would need needs less land for commercial development, not more.” This rationale was not cited in any of the other staff reports on petitions for commercial zoning as a justification for denying the zoning, but made its way into the report that recommended denying Bowles her zoning request.
The staff report did recommend C0 as a possible “buffer” use, and Bowles attempted to amend her petition to reflect a compromise that included a significant portion of the property as C0. However, the council voted it down before allowing the amended petition to go back before P&Z for consideration. As Bowles’ attorney put it, “If I wanted zoning in the City of Davenport, I would hire Niky Bowles to oppose it because I would likely get six votes.” For many who attend or observe council meetings, the aldermen’s dislike of Niky Bowles is almost palpable and their voting her zoning down, compromise or not, was predictable. Whether it is unlawful will be determined in court.
“Alderman McGivern claimed that he feared big box retail development at the corner of 53rd and Eastern if Spears and I [Spears owns the property just north of Bowles’] combined our properties into one parcel,” Bowles said. “There is no way this could happen because Spears has just as many restrictions on her C1 zoning as I had in my petition. They would have been the same in that regard. Either McGivern is too ignorant to know that the restrictions existed, or he was deliberately misleading the public about what could or could not occur if I received my C1 zoning. The staff claimed there would be traffic problems with so much development, yet that issue did not keep THF Realty from putting in a new Super Wal-Mart center a block up the road, with a lot more potential retail commercial development to come and many more traffic problems to contend with. The council can now be proud because they are creating the Midwest Mecca of minimum wage in McGivern’s sixth ward. But where were all these development concerns for these huge parcels they are zoning commercial when compared to my meager ten acres? This is pure discrimination against me, Niky Bowles, a female small developer, because these same concerns don’t substantially exist for any of the male large developers in Davenport. The council bends over backwards to accommodate them. The mayor often suggested, even encouraged me to pursue remedy in court, and I am finally forced to do so. Otherwise my investment is at risk. But it appalls me that the elected officials of our community expose taxpayers to the cost of these lawsuits because they refuse to do the right and lawful thing by themselves.”
When asked to comment, Mayor Phil Yerington concurred that he encouraged Bowles to take her complaints before a judge. “If we did something wrong, then we should be held accountable. She was wronged by the process, but now she must let the system work by letting the court decide the issues and make things right for her.”
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