Lawyers reveal their cases
Does the City of Storm Lake have a right to relocate the Robert James Kolb memorial gardens and fountain to make way for a long-awaited Project AWAYSIS development for the public good, or does the sole remaining heir to the Kolb Trust have the responsibility to fight to keep the memorial site as it was intended? It depends which attorney you listen to.
The gardens and fountain straddling East Lakeshore Drive and Sunrise Park Road have been a familiar landmark for more than 30 years. The site is dedicated to Robert J. Kolb, killed in a 1966 hunting accident while a high-school senior. Kolb's grandfather, Henry P. Kolb, established the trust to create and maintain gardens, in a contract with the city dated October 31, 1968, according to court documents. Henry Kolb also deeded to the trust two quarter sections of land, the proceeds of which go toward maintaining the formal flower gardens.
The fountain and gardens are in the middle of the area where an 80-unit lodge is proposed for Project AWAYSIS. It appears that it will be up to the court to decide if moving the gardens would violate the wishes of the late founder of the trust.
Norman J. Kolb of Storm Lake, the surviving trustee of the trust for his nephew's memorial, has filed for a legal injunction against the city's plans to relocate the gardens, after being informed of the plan in a letter. Kolb says the contract should stand.
In addition to the flower gardens, Henry and his wife, Martha, agreed to install and pay for the fountain west of the flower garden. The city agreed to extend a water line to the area and furnish water and electricity to the fountain.
The Kolb Trust conveyed the farmland to Robert H. Kolb and Norman J. Kolb, acting as trustees, with the understanding that proceeds from the farmland would be used to maintain the flower garden. Robert H. Kolb is since deceased, leaving his brother Norman as the sole trustee.
"Elimination of the garden and fountain from the specified site in the park will cause a failure of the trusts which created the Robert James Kolb Memorial Trust Fund," the petition states. If the city is permitted to destroy the fountain and garden, Kolb seeks a judgment that the Kolb Trust has failed, and "that a resulting trust exists for the benefit of the successors of the settlors."
The petition further requests reimbursement for legal fees.
The Storm Lake City Council and City Attorney Paul Havens are countering with an attempt to put the trust under court supervision, remove Kolb as trustee, and seek an accounting of all trust assets.
Trust attorney James Gailey said Friday that when the two farms were deeded to Henry Kolb's sons, Robert and Norman, as trust executors, the deeds specifically stated that proceeds from the farms could be used only for the flower gardens.
"It's very specific," Gailey said. "I think there's a feeling from the Council that believes Norm Kolb is opposed to AWAYSIS. Kolbs aren't opposed to AWAYSIS. They (City of Storm Lake) never took into consideration the Kolb Gardens."
Gailey said Norman Kolb is not just executor of a trust, but the son of its founder.
"Norman Kolb has a duty as a trustee to protect the integrity of that trust," Gailey said. "He's got a legal responsibility. It isn't them doing this personally. The objective is to do what Henry and Martha (Kolb) did 32 years ago, to keep that flower garden there. Norm is duty bound."
If Kolb is removed as trustee, Gailey said that would not be the end of trust representation.
"If Norm goes as trustee, then it's the Security Bank" that would succeed him as trustee, Gailey said.
Havens argues that the city, as the beneficiary of the trust's revenue, should not have to give up the support that it provides for the gardens.
"We do believe the funds of the trust could be used to support similar-type projects." That would include relocating the Kolb Memorial Gardens to the west in the planned Great Lawn area as Project AWAYSIS planners have envisioned.
According to its plans the city submitted to Vision Iowa for Project AWAYSIS, the Kolb Memorial Gardens would be relocated about 100 yards west of their current location.
Havens maintained that even if the property upon which the garden and fountain are located was privately owned by the Kolbs, rather than city property as it is currently, the city would have the right to condemn private property for development.
Havens said the lodge design would not accommodate the gardens and fountain as they are currently located. "The gardens are sort of located smack dab in the middle," Havens said.
Warranty deeds conveying the farmland state that if Robert H. or Norman J. Kolb were unable to act as trustee, Security Trust & Savings Bank would be named successor.
That provision is complicated, though, by another provision that "in the event of vacancies the City of Storm Lake, Iowa may apply to the District Court of Iowa in and for Buena Vista County for the appointment of a Successor Trustee and shall be given all power and authority herein delegated to the Trustees herein named."
The first petition hearing in county district court is scheduled for September 6, not far from the date that they city plans to begin moving the road and site work to prepare for construction of the hotel, expected to begin next spring.