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These are the January 24 filings of the City of Jefferson.

  • Cover Letter to Judge Ullsvik
  • Answer to Complaint dated December 19, 2005
  • Supplemental Brief
  • Supplemental Affidavit of City Clerk
  • Motion to Vacate
  • Motion to Dismiss

- John Foust, goJefferson.com Webmaster


LAW OFFICES OF
LAITSCH & BRANTMEIER, LLC
100 NORTH MAIN STREET, SUITE 203
POST OFFICE BOX 309
JEFFERSON, WISCONSIN 53549-0309
TELEPHONE (920) 674-6220
FACSIMILE (920) 674-6250
THOMAS J. LAITSCH BENNETT J. BRANTMEIER
laitsch@lblaw.biz COURT COMMISSIONER brantmeier@lblaw.biz

January 23, 2006

Honorable John M. Ullsvik
Jefferson County Courthouse, Branch I
320 S. Main Street
Jefferson, WI 53549

RE: Coalition for a Better Jefferson, et al. v. City of Jefferson, et al.

Jefferson Case No. 05-CV-582

Dear Judge Ullsvik:

I understand that there is a hearing scheduled for February 20, 2006, on the Motion to Dismiss the Mandamus Action, which I previously filed. I understood the Plaintiff had two weeks to respond to my brief, which response I have yet to receive.

Enclosed you will find a Supplemental Brief to support the Motion to Dismiss, as well as a Motion to Vacate the Temporary Restraining Order. I respectfully request that the court hear the Motion to Vacate the Temporary Restraining Order on February 20, 2006, prior to the Motion to Dismiss.

Lastly, I am enclosing the Answer to the Complaint dated December 19, 2005, reserving my Motion to Dismiss.

Respectfully submitted this 23 rd day of January, 2006.

LAITSCH & BRANTMEIER, LLC
Attorneys at Law
Bennett J. Brantmeier
WI State Bar #1019428
City Attorney for the City of Jefferson and Common Council of the City of Jefferson
BJB/kjd

enc: Supplemental Brief, Supporting Stewart Affidavit, Motion to Vacate, Motion to Dismiss, Answer to Complaint dated December 19, 2005

cc: Attorney David R. Halbrooks (w/enc)
Ms. Tanya Stewart (w/enc)
BJB/Jefferson/Ullsvik 011906


STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTY

________________________________________________________________

COALITION FOR A BETTER JEFFERSON and
PATTI LORBECKI, a qualified elector of the
City of Jefferson,

Plaintiffs,

v. Case No. 05-CV-582
Case Code 30704

CITY OF JEFFERSON and
COMMON COUNCIL OF THE
CITY OF JEFFERSON,

Defendants.

________________________________________________________________

ANSWER TO COMPLAINT DATED DECEMBER 19, 2005

________________________________________________________________

Defendants, City of Jefferson and the Common Council of the City of Jefferson, through their attorneys, Laitsch & Brantmeier, LLC, answer the Complaint filed December 19, 2005, as follows:

PARTIES AND VENUE

  • Admit.
  • Admit that Patti Lorbecki is a qualified elector. Deny the remaining allegations contained in paragraph 2, as any elector at the time of signing the petition may not have agreed to the filing and prosecution of this lawsuit.
  • Admit.
  • Admit.
  • Admit.

GENERAL ALLEGATIONS

  • Admit. Affirmatively assert that the petition speaks for itself.
  • Admit.
  • Admit.
  • Paragraph 9 states a legal conclusion and therefore does not require an answer from these answering Defendants. Alternatively, deny.
  • Admit that the first reading of the proposed direct legislation was November 15, 2005. Deny the remaining allegations contained in paragraph 10.
  • Admit that the council unanimously found the petition for direct legislation to be the “improper subjects for direct legislation”, among other reasons stated, as specified in Exhibit “A” attached hereto; Alderperson Coffman’s written motion.

WRIT OF MANDAMUS

  • Incorporate by reference the answers and affirmative defenses raised in paragraphs 1 through 11 above.
  • Paragraph 13 recites law and presents a legal conclusion, and therefore does not require an answer from these answering Defendants. Alternatively, deny and allege that §9.20 Wis. Stats. has judicially implied limitations.
  • Paragraph 14 states a legal conclusion, and therefore does not require an answer from these answering Defendants. Alternatively, admit that the Petition did have the requisite number of signatures. Deny the remaining allegations.
  • Paragraph 15 states a legal conclusion, and therefore does not require an answer from these answering Defendants. Alternatively, deny.
  • Paragraph 16 states a legal conclusion, and therefore does not require an answer from these answering Defendants. Alternatively, deny. Affirmatively assert that the Direct Legislation Petition is administrative in nature.
  • Paragraph 17 states several legal conclusions and is multiplicitous. Therefore not proper, nor in proper form, and does not require an answer from these answering Defendants. Alternatively, affirmatively allege that the motion made by Alderman Coffman, which passed unanimously by all eight Alderpersons, speaks for itself. A true and accurate copy is attached hereto as Exhibit “A” to this answer.
  • Paragraph 18 states several legal conclusions and is multiplicitous. Therefore not proper, nor in proper form, and does not require an answer from these answering Defendants. Alternatively, deny, affirmatively asserting that the motion made by Alderman Coffman, which passed unanimously by all eight Alderpersons, speaks for itself. (See Exhibit “A”)
  • Lack information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 19, as the membership of the “Coalition” has not been disclosed. Therefore, deny, putting Plaintiffs to their strict proofs therein.
  • Deny. Affirmatively allege that the Petition before the council was for annexation, not the potential development proposed for said annexation, and nothing is prohibiting the Plaintiffs from filing direct legislation.

INJUNCTIVE RELIEF

  • Incorporate by reference the answers and affirmative defenses raised in paragraphs 1 through 20 above.
  • Paragraph 22 states a legal conclusion, and therefore does not require an answer from these answering Defendants. Alternatively, deny, affirmatively asserting that the direct legislation is subject to judicial limitations.
  • Lack information sufficient to form a belief as to the truth or falsity of the allegations contained in paragraph 23. Therefore, deny, putting Plaintiffs to their strict proofs therein. Affirmatively allege that the terms of the statute itself show and intent to have the direct legislation apply prospectively.
  • Admit that the annexation readings complied with Wisconsin Statutes. Specifically deny that Plaintiffs would be irreparably harmed and the remaining allegations.

AFFIRMATIVE DEFENSES

25. Incorporate by reference the answers and affirmative defenses raised in paragraphs 1 through 24 above.

26. Plaintiffs have failed to state a claim upon which relief can be granted as against these answering Defendants.

27. The court lacks jurisdiction, as the Plaintiffs failed to properly file the Notice of Claim and Injury statutes under §893.80 Wis. Stats.

28. Section 9.20, Wis. Stats. does not allow any petitions to apply retroactively. The petition for direct legislation submitted by Plaintiffs is not the proper subject for direct legislation.

  • The City of Jefferson and its representatives are immune from liability for their discretionary decisions under common law and statutory immunities.

30. Plaintiffs’ claims are subject to the limitations and immunities contained within §893.80 Wis. Stats.

31. The Plaintiffs have failed to name the necessary parties to this action under §803.03(1) Wis. Stats.

32. Plaintiffs’ pleadings contain defects and/or lack appropriate service on these answering Defendants and therefore should be dismissed by the court.

33. Plaintiffs’ Writ of Mandamus and allegations under §9.20 Wis. Stats. have judicially implied limitations and said action, as well as the injunctive relief, should rightfully be dismissed by the court.

34. Plaintiffs are not entitled by law or equity to an injunction. The express language of §9.20, Wis. Stats. indicates the legislative intent to make any and all direct legislations submitted thereunder effective after passage. The petition does not have retroactive effect.

WHEREFORE, the City of Jefferson demands that the Complaint filed December 19, 2005, be dismissed, and that the Defendants be awarded their costs, disbursements and attorney’s fees, as authorized by law.

Dated this 23 rd day of January, 2006.
LAITSCH & BRANTMEIER, LLC
Attorney for the City of Jefferson

________________________________

Bennett J. Brantmeier
WI State Bar #1019428
100 N. Main Street, Suite 203
Jefferson, WI 53549
(920) 674-6220

Attachments: Exhibit A – Alderman Coffman’s Motion
BJB/Jefferson, City of/Answer 010406


STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTY

________________________________________________________________

COALITION FOR A BETTER JEFFERSON and
PATTI LORBECKI, a qualified elector of the
City of Jefferson

Plaintiffs,

v. Case No. 05-CV-582

CITY OF JEFFERSON and
COMMON COUNCIL OF THE
CITY OF JEFFERSON,

Defendants.

________________________________________________________________

CITY OF JEFFERSON’S AND COMMON COUNCIL OF THE CITY OF JEFFERSON’S NOTICE OF MOTION TO DISMISS

________________________________________________________________

TO: Coalition for a Better Jefferson Patti Lorbecki

c/o Attorney David R. Halbrooks c/o Attorney David R. Halbrooks
735 W. Wisconsin Ave., Ste. 1200 735 W. Wisconsin Avenue, Suite 1200
Milwaukee, WI 53233 Milwaukee, WI 53233

Midwest Environmental Advocates, Inc.
702 E. Johnson Street
Madison, WI 53703

PLEASE TAKE NOTICE that Defendants, City of Jefferson and Common Council of the City of Jefferson, moves the court pursuant to §802.06, Wis. Stats. for an Order dismissing the Complaint and the Amended Complaint.

This motion will be heard:

BEFORE: Honorable John M. Ullsvik

LOCATION: Jefferson County Courthouse

320 S. Main Street

Jefferson, WI 53549

DATE: February 20, 2006

TIME: 1:00 p.m.

The grounds for this motion are set forth in the accompanying Brief and supporting Affidavit.


Dated this 23 rd day of January, 2006.

LAITSCH & BRANTMEIER, LLC

Attorneys for Defendants

________________________________

Bennett J. Brantmeier

WI State Bar #1019428

100 N. Main Street, Suite 203

Jefferson, WI 53549

(920) 674-6220

BJB/Jefferson, City of/Notice of Motion to Dismiss 122705


STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTY

________________________________________________________________

COALITION FOR A BETTER JEFFERSON and

PATTI LORBECKI, a qualified elector of the

City of Jefferson,

Plaintiffs,

v. Case No. 05-CV-582

Case Code 30704

CITY OF JEFFERSON and

COMMON COUNCIL OF THE

CITY OF JEFFERSON,

Defendants.

________________________________________________________________

NOTICE OF MOTION AND MOTION TO VACATE

THE TEMPORARY RESTRAINING ORDER/INJUNCTION

________________________________________________________________

TO: Coalition for a Better Jefferson Patti Lorbecki

c/o Attorney David R. Halbrooks c/o Attorney David R. Halbrooks

735 W. Wisconsin Ave., Ste. 1200 735 W. Wisconsin Avenue, Suite 1200

Milwaukee, WI 53233 Milwaukee, WI 53233

Midwest Environmental Advocates, Inc.

702 E. Johnson Street

Madison, WI 53703

PLEASE TAKE NOTICE that Defendants, City of Jefferson and Common Council of the City of Jefferson, will move the court to vacate the Temporary Restraining Order/Injunction.

This motion will be heard:

BEFORE: Honorable John M. Ullsvik

LOCATION: Jefferson County Courthouse

320 S. Main Street

Jefferson, WI 53549

DATE: February 20, 2006

TIME: 1:00 p.m.

The grounds for this motion are set forth in the accompanying Brief and supporting Affidavit.


Dated this 23 rd day of January, 2006.

LAITSCH & BRANTMEIER, LLC

Attorneys for Defendants

________________________________

Bennett J. Brantmeier

WI State Bar #1019428

100 N. Main Street, Suite 203

Jefferson, WI 53549

(920) 674-6220

BJB/Jefferson-Coalition/Motion to Vacate 010406


STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTY

________________________________________________________________

COALITION FOR A BETTER JEFFERSON and

PATTI LORBECKI, a qualified elector of the

City of Jefferson

Plaintiffs,

v. Case No. 05-CV-582

CITY OF JEFFERSON and

COMMON COUNCIL OF THE

CITY OF JEFFERSON,

Defendants.

________________________________________________________________

SUPPLEMENTAL AFFIDAVIT OF TANYA STEWART

________________________________________________________________

STATE OF WISCONSIN )

)ss.

JEFFERSON COUNTY )

I, Tanya Stewart, after being first duly sworn state under oath as follows:

  • I am the Clerk for the City of Jefferson and have been the Clerk for the City of Jefferson during all times relevant to the above-captioned matter. As the City Clerk, I am the legal custodian of all city records.
  • The City of Jefferson has developed its Master Plan. That comprehensive Master Plan is lengthy and followed the statutory procedures for its enactment. It can be found on the City’s website at www.jeffersonwis.com/eng.htm
  • Attached hereto as Exhibit “1” is a true and accurate copy of the minutes from the City of Jefferson Planning Commission meeting held on June 24, 1998, including the minutes concerning the “public hearing on the Comprehensive Master Plan for the City of Jefferson”.
  • Attached hereto as Exhibit “2” is a true and accurate copy of the minutes of the City of Jefferson Common Council meeting for June 3, 2003, including the minutes for the “public hearing on the ordinance creation §17.05(6)(m) of the City of Jefferson Municipal Code relating to standards for large retail buildings in excess of 50,000 square feet”, or the public hearing on the Big Box Ordinance.
  • Attached hereto as Exhibit “3” is a true and accurate copy of the minutes from the City of Jefferson Common Council meeting of January 3, 2006, including the removal of the two proposed annexations from the agenda, as well as the vote of the Council concerning the proposed direct legislation, which again, was unanimously found not to be the proper subject for direct legislation.
  • Attached hereto as Exhibit “4” is a true and accurate copy of Chapter 7 of the Jefferson Municipal Code concerning “Assessment and Charges”.
  • Attached hereto as Exhibit “5” is a true and accurate copy of Chapter 19 of the Jefferson Municipal Code concerning “Budget and Finance”.
  • Attached hereto as Exhibit “6” is a true and accurate copy of sections 286-25; “Zoning Administrator”, and 286-26; “Planning Commission” of the City of Jefferson Municipal Code.
  • Attached hereto as Exhibit “7” are true and accurate copies of portions of the City of Jefferson Municipal Code concerning “Zoning Districts”, including sections 300-18; “Establishment”, 300-19; “Zoning Math”, 300-20; “Residential Districts”, 300-21; “Business Districts”, 300-22; “Industrial Districts”, 300-23; “Agricultural Districts”, 300-24; “Area, Height, Size, and Setback Requirements”, 300-25; “Conditional Use Permit”, 300-26; “Application for Permit; Public Hearing”, 300-27; “Review and Approval”, 300-28; “Public and Quasi Public Uses”, 300-29; “Residential Uses”, 300-30; “Highway-Orientated and Commercial Uses”, and 300-31; “Industrial and Agricultural Uses”.
  • Attached hereto as Exhibit “8” are true and accurate copies of portions of the City of Jefferson Municipal Code concerning “Site Plan Approval”, including sections 300-90; “When Required”, 300-91; “Application”, 300-92; “Administration”, 300-93; “Requirements”, 300-94; “Effect on Municipal Services, and 300-95; “Fee”.
  • Attached hereto as Exhibit “9” are true and accurate copies of portions of the City of Jefferson Municipal Code concerning §294-4; Approval Procedure” for subdivisions.

________________________________

Tanya Stewart
Clerk for City of Jefferson
Legal Custodian of Records
Subscribed and sworn to before me
this 23 rd day of January, 2006.
______________________________

Notary Public, Jefferson County, WI
My commission expires: ___________
BJB/Jefferson, City of/Supplemental Affidavit of Stewart 012006


STATE OF WISCONSIN CIRCUIT COURT JEFFERSON COUNTY

________________________________________________________________

COALITION FOR A BETTER JEFFERSON and

PATTI LORBECKI, a qualified elector of the

City of Jefferson,

Plaintiffs,

v. Case No. 05-CV-582

Case Code 30704

CITY OF JEFFERSON and

COMMON COUNCIL OF THE

CITY OF JEFFERSON,

Defendants.

________________________________________________________________

SUPPLEMENTAL BRIEF IN SUPPORT OF MOTION TO DISMISS AND TO VACATE TEMPORARY RESTRAINING ORDER

________________________________________________________________

Defendants submit the following Supplemental Brief to support the Motion to Dismiss and to Vacate the Temporary Restraining Order.

STATEMENT OF FACTS

On June 3, 2003, the City of Jefferson passed and adopted the “Big Box Ordinance”. After passage, that ordinance had to be published within 15 days and took “effect on the day after its publication.”… §62.11(4)(a), Wis. Stats. (See also Stewart Aff., Ex. B; Big Box Ordinance). Although there was talk of a possible Wal-Mart Supercenter at the time the Big Box Ordinance was adopted by the City of Jefferson, a formal proposal had not been submitted. The Big Box Ordinance was passed by the City’s elected officials after considerable debate and public comment. (Stewart Aff., Ex. A; see also Brantmeier Aff., Exs. A, B, C; minutes from public meetings on Big Box Ordinance)

In January of 2004, a citizen of the Town of Jefferson (Bill Koehler) submitted a Petition requesting, in essence, a “supermajority” vote for any annexation of the 22 acres. The Koehler Petition was signed by more than 20% of the abutting landowners under §62.23(7)(2m)(a) Wis. Stats. However, at the time the Petition was filed, there was not a pending annexation before the City of Jefferson.

The City Attorney commented:

“…That annexation would require a two-thirds vote of the council in order to be approved. §66.0217(2), Wis. Stats. This statute provides for judicial review on any grounds, procedural or jurisdictional, to contest the validity of an annexation ordinance. §66.0217(11)(a) An action contesting an annexation will be given preference in the Circuit Court. §66.0217(11)(b) That action must be commenced within 90 days of the adoption of the annexation ordinance. §893.73(2).” (Stewart Aff., Ex. F; Brantmeier ltr. 1/14/04)

As reflected in the February 3, 2004, Common Council minutes, “Attorney Brantmeier gave an explanation of Mr. Koehler’s Petition. He stated that the Petition Mr. Koehler submitted referred to zoning, rather than annexation. The City Attorney also added that the Application is premature since the City has not received any Petition or the like from Wal-Mart. (Stewart Aff., Ex. F; Council Minutes 2/3/04, p. 2 bottom).

Subsequently, McClure Engineering, on behalf of Shermans and Pinnows, submitted a Petition for Annexation for the approximate 22 acres. The first reading of that Petition was on March 15, 2005. The Planning Commission reviewed the proposed annexation and recommended to the Council that it be approved. A Planner for the City of Jefferson was asked for an opinion on the annexation and stated: “The proposed annexation is consistent with the master plan.” (Stewart Aff., Ex. N). The second reading was on May 3, 2005. The council voted not to annex the property at the May 3, 2005, meeting. (Stewart Aff., Ex. C and E)

Alderman Gene Benka, who voted against the original annexation, moved the Common Council to reconsider the council action, and requested that the second reading for the proposed annexation be placed back on the June 7, 2005, common council meeting agenda. Although the council gave serious thought to the annexation after an hour of public participation, the proposed annexation was defeated on a vote of 5-3, with Alderman McGrath, Alderman Olsen, and Alderman Stewart casting the dissenting votes. (Stewart Aff., Ex. G; Notes on Proposed Annexation and Minutes of the City of Jefferson Common Council 6/7/05).

As a result of not receiving the two-thirds vote necessary for annexation, a group of citizens calling themselves “Coalition for a Best Jefferson” circulated a Petition asking for the recall of David E. Olsen. [Emphasis Added]. The basis for the recall of Mr. Olsen was an allegation that he had violated the Open Meetings Laws of the State of Wisconsin and had not acted in the best interest of the City of Jefferson. As a result of that political battle, Alderman Chris Havill defeated Alderman Olsen, 880 votes to 815. (See Stewart Aff., Ex. H). That election occurred on September 27, 2005.

On or about October 28, 2005, McClure Engineering, on behalf of the Shermans and Pinnows, submitted another Petition for Annexation. The first reading of the Petition for Annexation was held on November 15, 2005. (Stewart Aff., Ex. J; Common Council Minutes 11/15/05). Under §66.0217(6), Wis. Stats., the Petitioner submitted a copy of the proposed annexation with the Wisconsin Department of Administration. On November 28, 2005, the Department of Administration sent a letter indicating that the proposed annexation is “found to be in the public’s interest”. (Stewart Aff., Ex. K). The Petition for Annexation, after its first reading was sent to the Jefferson Planning Commission. On December 14, 2005, the Planning Commission recommended to approve the proposed annexation ordinance and set the temporary zoning designation as BHN (Highway and Neighborhood Business District). (Stewart Aff., Ex. T; Planning Commission Minutes, p. 2)

Plaintiffs, on October 10, 2005, submitted the Petition for Direct Legislation. (Dec. 19, 2005 Complaint, para. 6). Four days later on October 14, 2005, the Coalition offered enough signatures pursuant to §9.20, Wis. Stats. The City Clerk did certify the Petition as sufficient as to form on October 21, 2005. (Dec. 19, 2005 Complaint, paras. 7 and 8). The law requires a first and second reading. The first reading of the proposed direct legislation was held on November 1, 2005. The second reading was set for November 15, 2005. (Dec. 19, 2005 Complaint, para. 10).

On November 14, 2005, Plaintiff filed the original Application for Temporary Restraining Order and Summons and Complaint in the above-captioned matter. A hearing was held at 1:00 p.m. on November 15, 2005, the court did not grant the Plaintiffs’ requested restraining order/injunction based on a finding of no “irreparable harm”.

Next, the Coalition filed another Complaint on December 19, 2005, which has never been served on the City Attorney, Attorney Brantmeier. The City Clerk was served by David Lorbecki at about noon December 22, 2005. A hearing on the submittal was held on December 28, 2005. As a result of the offer of proofs at the hearing, the court issued a Temporary Restraining Order prohibiting the City from annexing any property of 15 acres or more while the mandamus action was pending. The court gave the Plaintiff two weeks, or until January 11, 2006, to file a response to the Defendants’ Motion to Dismiss, and indicated that the court would set this matter for a full hearing on the Motion to Dismiss within 45 days. The City has not been provided a copy of the response and a hearing is now set for February 20, 2006.

On January 3, 2006, the City of Jefferson Common Council had a regular monthly meeting. There were two annexation items on the agenda. Item #4 was the Sherman/Pinnow 22 acre annexation. Item #5 was the St. Coletta 288 acre annexation notice. As a result of the court order, Mayor Collin Stevens removed item #4 from the agenda “per the Order of Judge Ullsvik, which temporarily restrains the City from annexing any property into the City 15 acres or more while the mandamus action is pending.” Mayor Stevens also removed item #5 from the agenda, or the first reading of a notice to annex over 288 acres filed by St. Coletta of Wisconsin. (Stewart Supp. Aff., Ex. 3)

ARGUMENT

The Defendants, City of Jefferson and Common Council of the City of Jefferson, renew the objections raised in the original Motion to Dismiss and Brief in Support of Motion to Dismiss. In addition, the Defendants supplement their original brief to address the particulars of the Temporary Restraining Order and mandamus action.

There are four standards that need to be met in order for the court to enter a Temporary Injunction. See School District of Slinger v. WIAA, 210 Wis.2d 365, 371, 563 N.W.2d 585 (Ct. App. 1997). They include: (1) preserving the status quo, (2) showing of irreparable harm, (3) having no adequate remedy at law, and (4) probability of success on the merits. Id. None of the standards have been met in this case.

PRESERVING THE STATUS QUO

As referenced in the original submission, and again at the hearing, the status quo for the City of Jefferson is “business as usual” or the ordinances that are in existence at the time any Petitions for Annexation are submitted to the City. (See Code of the City of Jefferson; General Code Publisher Corp. 8/15/05). Those ordinances do not include the proposed direct legislation. A City ordinance does not become effective until passage (first and second readings) and then must be published within 15 days and “shall take effect on the day after its publication or at a later date if expressly prescribed.” §62.11(4)(a), Wis. Stats. In fact, the proposed direct legislation (hereinafter “Petition”) submitted by the Plaintiffs has, in the very last sentence:

“This ordinance shall take effect and be in full force from and after its passage and publication.” (Original Complaint, Ex. 1) [Emphasis Added]

Ordinances and laws do not have retroactive effect in the State of Wisconsin. Section 9.20(7), Wis. Stats. specifically states that any proposed legislation becomes law the day after publication. A petition should have been submitted for the November 2005 ballot and passed, then published, to bind the City from acting on the two annexations. Plaintiffs created their own emergency, as they knew about the petition back when the Koehler Petition was filed in January of 2004. (Stewart Aff., Ex. E). The point can be illustrated with a sequential hypothetical. The City Code of Ordinances allow the City to act on Petitions for Annexation by following Wisconsin Law. (See §66.0217). The status quo are the ordinances in place at the time the direct legislation is filed. If the Plaintiff was entitled to an injunction, they could file a new Petition for Direct Legislation the day before the next election (April 4, 2006) and by obtaining 15% of the voters, could halt growth in the City. Even if their first proposed legislation failed, 15% of the voters could circumvent the system by applying for and obtaining an injunction until the direct legislation goes to vote at the next regular election. The purpose of a temporary injunction is to maintain the status quo, not to change the positions of the parties. School District of Slinger v. WIAA, 210 Wis.2d 365, 563 N.W.2d 366 (Ct. App. 1997)

The Supreme Court of the State of Wisconsin has ruled that a party may not obtain injunctive relief that he would not be permanently entitled to if he prevailed on the merits of the claim. Browne v. Milwaukee Board of School Directors, 83 Wis.2d 316, 337, 338, 265 N.W.2d 559 (1978). (Emphasis Added) In Browne the workers petitioned the court for a Writ of Mandamus requiring the Trial Court to vacate its order of referral to W.E.R.C. The Trial Court entered an order holding the mandamus petition in abeyance, pending the disposition of the appeal. The Supreme Court reversed the Trial Court on the issue finding that the workers “…have no grievance at all” holding, “We think that an injunction restraining enforcement of the union-shop agreement is therefore plainly not a remedy appropriate…”. Id. The Supreme Court of Wisconsin echoed that holding in Mt. Horeb (263 Wis.2d 544, 552) when commenting on the Right of Mandamus. The Plaintiff must have “a clear legal right to relief”. Id.

In the case at bar, the City Council found twice that the petition was not proper for direct legislation. (November 15, 2005, Stewart Aff., Ex. M; January 3, 2006, Stewart Supp. Aff., Ex. 3). If Plaintiffs prevail on their mandamus agreement, the court would order the City to send the petition to vote. If it passed, it would become the law (ordinance) after publication. That is, the petition would need to be published within 10 days of passage and become law (ordinance) the day after publication. §9.20(7), Wis. Stats.

Even the terms of the petition identify that it would not take effect until…”after passage and publication as required by law”. (Complaint, Ex. 1) It cannot be applied retroactively. The “status quo” are the ordinances that exist today. Laws do not apply retroactively; neither does the petition if passed by the voters. Again, the Direct Legislation statute itself clearly shows an intent by the legislature to make the petition prospective and not retroactive:

“If a majority vote in favor of adoption, the proposed ordinance or resolution shall take effect upon publication under sub. (5). Publication shall be made within 10 days after the election.” §9.20(7), Wis. Stats. [Emphasis Added]

IRREPARABLE HARM

At the December 28, 2005, hearing the court asked counsel for the Plaintiffs several times what irreparable harm would come to the Plaintiffs if a Super Wal-Mart was allowed on the 22 acre site? That approach may have been improper. Currently, the Petition for Annexation of the Sherman and Pinnow property is before the City of Jefferson Common Council. Wal-Mart is not. In order for a Wal-Mart Supercenter to be built on the proposed 22 acres, several conditional uses, permanent zoning classification, as well as a stringent Developer’s Agreement, would be required to be entered into between Wal-Mart and the City of Jefferson. Those conditions subsequent to the annexation are subject to Council approval and must be met before any development.

For example, a conditional use is necessary for a full-auto-repair facility. City Code §300-30(J). (Stewart Supp. Aff., Ex. 8). A conditional use is also required for a developer to comply with the “big box” ordinance. §300-30(M). (Stewart Supp. Aff., Ex. 8). That would require the developer to apply for a conditional use permit from the City Zoning Administrator and have it be approved by the City Planning Commission per the City’s Municipal Code. Id.

Under the proposed direct legislation, the City would be required to pay for studies to consider items already considered as part of its existing ordinances during the conditional use permit process or Developer Agreement stage. That process would simply not work when the “Budget and Finance” for the City is reviewed. (Stewart Supp. Aff., Ex. 5)

The permanent zoning designation would also require a vote from the Common Council after public hearing. All developer’s agreements and zoning requirements would need council approval before passage. The eight Alderpersons are elected, through the political process, to govern and make decisions as it effects the City of Jefferson. They are bound by the Code of the City of Jefferson (hereinafter “Jefferson Code”). For the reasons stated in the Motion by Alderman Coffman, they found at the November 15, 2005, council meeting that the petition was not the proper subject for direct legislation. (Stewart Aff. Ex. J). Again, on January 3, 2006, the Common Council as a whole had an opportunity to explore their options which resulted in the renewing of Alderman Coffman’s Motion to find that the petition was not the proper subject for direct legislation. (Stewart Supp. Aff., Ex. 3). Plaintiffs’ remedy is a political one, which does not lie in the judicial realm. The council, as it exists at the time of the annexation request, has the right to vote on a potential for annexation. The Temporary Restraining Order circumvents the authority given to the council to legislate and is not a remedy available to Plaintiff even if the petition had been sent to the voters.

Property owners have the right to petition for annexation under Wisconsin Law §66.0217, Wis. Stats. That right has been explained by the Supreme Court of the State of Wisconsin.

“Where property owners have initiated the direct annexation proceedings involved, we cannot ignore their right to so petition unless we find some Svengali-Trilby relationship between the municipality and the petitioners involved. Here there is no gainsaying that the city of Waukesha wanted, encouraged and aided the petitioners in acting as they did. But there is no evidence that would make the city of Waukesha a puppeteer and the petitioners puppets dancing on a municipal string. They acted in the light of their desires and best interests as they saw them and their right to do so, statutorily provided, is not to be disregarded.” Town of Waukesha v. City of Waukesha, 58 Wis.2d 525, 530, 206 N.W.2d 585, 587 (1973). [Emphasis Added]

NO ADEQUATE REMEDY AT LAW

There are three methods by which town territory contiguous to a city may be annexed:

  • Direct annexation ( §66.0217)
  • Annexation by referendum ( §66.0219)
  • Annexation of town islands ( §66.0221)

The annexation process.

Under §66.217(2), Wis. Stats. a unanimous consent annexation (such as the Sherman/Pinnow annexation), must be presented on a Petition by 100% of the electors and 100% of the landowners. That Petition is filed with the City Clerk. At the same time as the filing with the Clerk, a copy of the Petition is filed with the Department of Administration, as well as the Clerks of the affected towns and affected school districts. The annexation Petition is then submitted to the council for its first reading, which merely informs the public that it has been filed. After the first reading by the council, the Annexation Petition is sent to the City Planning Commission for their review and recommendation to the council concerning annexation, as well as setting a temporary zoning designation as part of the annexation process.

The Department of Administration conducts a “public interest” review and issues an opinion within 20 days of receiving the Petition for Annexation. §66.217(6), Wis. Stats. The department determines “public interest” after considering the following:

“Whether the governmental services, including zoning, to be supplied to the territory could clearly be better supplied by the Town…whose boundaries are contiguous to the territory proposed for annexation which files with the Circuit Court a certified copy of a resolution adopted by a two-thirds vote of the elected members of the governing body indicating a willingness to annex the territory upon receiving an otherwise valid petition for the annexation of the territory. §66.0217(6)(c)(1), Wis. Stats.

The annexation becomes final after publication if the City adopts an ordinance by two-thirds majority vote of the elected officials. The annexation is then filed with the Office of the Secretary of State, area utilities, Register of Deeds, and the affected school districts. (Stewart Aff., Ex. Z; Process of Unanimous Consent Annexation Outline of §66.0217, Wis. Stats.)

Then, any action to appeal, whether procedural or jurisdictional, must be filed within 90 days of the annexation ordinance being adopted. See §66.0217(11), Wis. Stats.; see also §893.73(2), Wis. Stats. “An action contesting an annexation shall be given preference in the Circuit Court.” (§66.0217(11)(b), Wis. Stats.) That appeal does not stay the annexation, “but…copies of the certificate and plat may not be filed with the Secretary of State until the appeal has been determined.” §66.0219(1), Wis. Stats.

Plaintiffs’ legal remedy is to appeal the annexation. Even if the court grants Plaintiffs’ Writ of Mandamus, the City cannot lawfully be enjoined from acting on the proposed annexations (Sherman, Pinnow, and St. Coletta) while the direct legislation awaits vote. See supra Browne v. Milwaukee Board of School Directors, 83 Wis.2d at 337, 338.

PROBABILITY OF SUCCESS ON THE MERITS

Plaintiffs contend that §9.20, Wis. Stats. compels the City to pass the ordinance, within 30 days or send it to the electors. However, four judicially implied limitations apply: the petition:

  • must be legislative, not administrative in character;
  • may not amend or repeal existing legislation;
  • may not alter statutorily prescribed procedures;
  • may not exercise powers that the municipality’s governing body could not exercise.

    Althouse v. City of Madison , 79 Wis.2d 97, 255 N.W.2d 499 (1977).

If the petition fails one of the above, it is not proper for direct legislation. Here, it fails all four.

ADMINISTRATIVE NOT LEGISLATIVE

The City respectfully disagrees with the court’s initial finding. The proposed direct legislation suggests that any parcel that is to be annexed must have a “Plan/Development” to analyze at the point of annexation. Because of the “Plan/Development” requirement, the proposed ordinance, when applied, would impede the zoning functions of the City Planning Commission. Therefore, the ordinance proposed by the direct legislation is administrative, rather than legislative. As such, it is an improper subject matter for direct legislation. Mt. Horeb Community Alert v. Village Board of Mt. Horeb, 2003 WI 100, ¶17, 263 Wis.2d 544, 665 N.W.2d 229 (2003).

“The test of what is a legislative proposition and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’” Mt. Horeb, 263 Wis.2d at 557, quoting Save our Fire Department Paramedics Committee v. City of Appleton, 131 Wis.2d 366, 389 N.W.2d 43 (Ct. App. 1986) [Emphasis Added]

That holding has been followed by the courts for some time. “The power to be exercised is legislative in nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.” Becker v. City of Milwaukee, 101 Wis.2d 680, 686, 305 N.W.2d 178 (Ct. App. 1981). Petitions which are “not affirmative legislation upon a new subject, but instead [seek] to impose conditions on previously enacted” measures are administrative in nature, and thus not a proper subject for direct legislation. Mt. Horeb Community Alert v. Village Board of Mt. Horeb, 2003 WI 100, ¶22, 263 Wis.2d 544, 557, 655 N.W.2d 229 (2003). While the proposed ordinance is written in general terms, its application to ongoing projects is in an administrative matter.

Specifically, zoning and city planning are inherently administrative matters. In Heiden v. City of Wauwatosa, 37 Wis.2d 466, 155 N.W.2d 17 (1967), the proposed direct legislation would have prohibited the Common Council from approving any capital expenditures for an addition to a high school for three years and from appropriating or leaving any amount to be raised by city taxation for an addition to the high school, unless and until a master plan had been adopted by the common council. Id. at 473. The Court reasoned that city planning is an administrative function…””[T]he resolution seeks to control the actions of the City Plan Commission regarding the adoption of a master plan. City planning is an administrative function of the City Planning Commission conferred by statute.” Heiden, Wis.2d at 476. The court went on to hold:

“The proposed resolution seeks to undermine the authority granted the City Plan Commission by statute. The resolution directs the commission as to what to include in the master plan, directs that the master plan shall cover a ten-year period, and directs that a nonresident expert be employed. In addition, the resolution demands a public hearing be held on the adoption of the plan. Sec. 62.23, Stats., leaves the construction and adoption of the master plan entirely within the hands of the City Plan Commission. This represents a policy decision by the legislature that city planning should not be entirely controlled by city political considerations but rather guided by objectivity.” Heiden, Wis.2d at 477. [Emphasis Added]

In the City of Jefferson, zoning and city planning matters are controlled by the City Planning Commission. (See Wis. Stat. §62.23(1); Jefferson Code §286-26; Stewart Supp. Aff., Ex. 6). The Planning Commission, and its Zoning Administrator, perform many of the same functions and studies as would be required by the proposed ordinance. (See generally, Jefferson Code §286; Stewart Supp. Aff., Ex. 6). For example, the direct legislation would require the City to undergo a “traffic impact assessment” including road “design capacity”, “level of service”, “queuing analysis”, “existing traffic conditions”, and “infrastructure remediation”. (Original Complaint, Ex. 1, Sec. 2(a), (b), (c), (d), (e)) The Jefferson Code, however, already requires the Zoning Administrator and Planning Commission to consider the “location and elevation of existing or future access roads.” §286.25(B)(2)(e). (Stewart Supp. Aff., Ex. 6). This is only one example of the myriad of studies and decisions which the proposed ordinance seeks to shift from the Planning Commission to outside consultants. Clearly, this is an administrative matter. See supra Heiden.

Perhaps most interestingly is that the direct legislation also shifts when the studies are performed. Existing law requires zoning and impact studies to be made when the developer comes to the Planning Commission with a site plan to apply for a building permit, conditional use permit (required under the Big Box ordinance; Stewart Aff., Ex. B). At that point, the developer has a concrete plan for the land use and has had months, if not years, to consider the best use for the land. The proposed ordinance, on the other hand, requires the studies to be performed when the landowner petitions the City for annexation. At this point, as here, the land may be owned by persons other than the developer. In fact, there may not even be a developer interested in the land at the time of annexation and, consequently, no specific plan for use of the land once annexed. Thus, at this early stage in the development cycle a traffic or environmental study – divorced from the ultimate specific use of the land – may be relatively meaningless and give the City less information to consider in attempting “smart” growth.

The direct legislation, then, simply tells the city how and when to do something it already has established procedures for doing. As described in Heitman, 226 Wis.2d 549, 554, an administrative action is one wherein the object of the petition is to tell the governing body how to do something, as opposed to a legislative action, which would tell the governing body what to do. In this case, the “what” is the annexation of a piece of land. Annexation is a process that cities have been doing for years, is strictly controlled by the state statute, and, the City of Jefferson already knows how to do. The only addition to the law that this direct legislation would bring is a series of procedural steps and studies dictating a new method of accomplishing this familiar municipal task. This is an “administrative action” under the Paramedics Committee definition, and it is not a proper purpose for direct legislation.

Again, the petition states it deals with annexation, but if passed and applied, it would circumvent the role of the Planning Commission and impact “zoning” rather than annexation. The petition takes all of the issues out of the City and puts them into the hand of third-party consultants, which findings are subject to appeal by the people. In Heiden v. City of Wauwatosa, 37 Wis.2d 466, 155 N.W.2d 17 (1967), the Supreme Court of the State of Wisconsin affirmed the Trial Court’s order, which denied the initiative proponents request for a Writ of Mandamus to compel the Common Council to submit an initiative resolution to the electorate. The proposed direct legislation or referendum in this case at bar is administrative for the very reasons stated in Heiden.

The Supreme Court interpreted Heiden in Mt. Horeb Community Alert v. Village Board of Mt. Horeb, 263 Wis.2d 544, 655 N.W.2d 229 (2003). Petitions which are “not affirmative legislation upon a new subject, but instead [seek] to impose conditions on previously enacted” measures are administrative in nature, and thus not a proper subject for direct legislation. Id. at 263 Wis.2d at 557. While the proposed ordinance is written in general terms, its application to ongoing projects is an administrative matter.

The Supreme Court of Wisconsin further interpreted earlier decisions:

“The test of what is a legislative proposition and what is an administrative proposition, with respect to the initiative or referendum, has further been said to be whether the proposition is one to make new law or to execute law already in existence. Again, it has been said: ‘The power to be exercised is legislative in its nature if it prescribes a new policy or plan; whereas it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.’” Mt. Horeb, 263 Wis.2d at 557, quoting Save Our Fire Department Paramedics Committee v. City of Appleton, 131 Wis.2d 366, 389 N.W.2d 43 (Ct. App. 1986) [Emphasis Added]

The Plaintiffs only mention the Sherman/Pinnow annexation in their Complaint and say nothing of the St. Coletta annexation. (Dec. 19, 2005 Complaint, para. 24). Ordinances relating to subjects of permanent or general character are legislative, as opposed to ordinances relating to subjects of temporary and special character, which are regarded as administrative. Paramedics Committee, 131 Wis.2d at 376.

“The power to be exercised is legislative in nature if it prescribes a new policy or plan; whereas, it is administrative in its nature if it merely pursues a plan already adopted by the legislative body itself, or some power superior to it.” Becker v. City of Milwaukee, 101 Wis.2d 680, 686, 305 N.W.2d 178 (Ct. App. 1981) [Emphasis Added]

An ordinance proposed by direct legislation is administrative if it directs the municipality to expend funds which were not otherwise budgeted. (See State ex rel. Becker v. Common Council of City of Milwaukee, 101 Wis.2d 680, 688, 305 N.W.2d 178, 182-3 (Ct. App. 1981). Here, the proposed ordinance would force the City to spend municipal funds to hire outside consultants to perform the required studies upon receipt of an annexation petition. This is in sharp contrast to the proposed ordinance in Mt. Horeb Community Alert v. Village Board of Mt. Horeb, 2003 WI 100, 263 Wis.2d 544, 665 N.W.2d 229 (2003). There, the proposed ordinance required “the Village of Mount Horeb to hold a binding referendum prior to the start of construction on any new village building project requiring a capital expenditure of $1 million or more.” Id., para. 2. That is, the municipal expenditure was triggered by the municipality’s legislative body; a decision to add a municipal facility. Here, on the other hand, any owner of land adjacent to the City that petitions for annexation causes the City to perform studies and the expenditure of public funds. Additionally, how would that process be reconciled with the City’s “Budget and Finance” under its ordinance? (See Stewart Supp. Aff., Ex. 5)

Perhaps most disturbing is that there is no limit to these expenditures. A landowner has a statutorily provided right to petition for annexation and to have that petition properly considered by the City. Town of Waukesha v. City of Waukesha, 58 Wis.2d 525, 530, 206 N.W.2d 585, 587 (1973). That right “is not to be disregarded.” Id. As such, the City cannot refuse to perform the required studies. Under the proposed ordinance, landowners could effectively hold the City budget hostage by continually petitioning for annexation, thereby prompting the expenditure of funds for study after study. There is simply no way for the City to effectively draft a budget with these unknown, unpredictable and uncontrollable expenses. Ironically, under the petition the City’s only hope for recouping any of these funds is to approve the annexations.

ORDINANCE OF GENERAL APPLICATION

By its terms, the proposed ordinance is one of general application – applying to all qualifying annexations. It is not directed solely towards the Pinnow/Sherman annexation. The ordinance must be of general application, otherwise it would be “special legislation,” thus administrative and inappropriate subject of legislation for direct legislation.

As a matter of general legislation, the ordinance will, if adopted, apply to all qualifying annexations considered subsequent to its enactment. It will not apply retroactively to annexations petitions filed prior to its enactment. Similarly, by its own terms the proposed is not effective until passed and published. Thus, the situation is no different than any other form of general legislation. Matters considered before enactment of the new ordinance or statute must be considered under existing law. Matters raised subsequent to enactment, however, will be considered under the new law.

In any given year, there are thousands of bills pending at all levels of government and initiated in varying manners. Yet, the operation of government does not cease nor are pending bills applied before their respective enactments. Direct legislation is no different from any other proposed ordinance, and should not be granted a unique status by enjoining the City from considering pending annexations.

The plaintiffs’ motion and argument suggests that this is something other than a law of general application. They suggest that their action was in fact intended to block development of the Sherman/Pinnow property. Therefore, they argue that they are entitled to enforce this law against that annexation by enjoining the City from furthering annexations during the pendency of the direct legislation petition.

Setting aside the constitutional implications of such an argument, plaintiffs’ remedy is not to enjoin the City from properly acting on a petition filed before the effective date of the proposed ordinance. Plaintiffs’ remedy was to file the direct legislation earlier in the process. As noted in plaintiffs’ affidavit, this matter has been pending for more than two years. Plaintiffs cannot have it both ways. The proposed ordinance is either of general application, and cannot apply retroactively, or, the proposed ordinance is specific to the Pinnow/Sherman annexation. Then, such an argument strips away the broad public policy, the initiative, and renders nothing more than political strategy of which the court should not play a roll.

THE PETITION REPEALS EXISTING ORDINANCES

“The word ‘repeal’ is defined as:

The abrogation or annulling of a previously existing law by the enactment of a subsequent statute which declares that the former law shall be revoked and abrogated, (which is called ‘express’ repeal), or which contains provisions so contrary to or irreconcilable with those of the earlier law than only one of the two statutes can stand in force, (called ‘implied’ repeal).” Heiden, 37 Wis.2d at 478; quoting, Blacks Law Dictionary, 4 th Ed.

In Heiden v. City of Wauwatosa, 37 Wis.2d 466, 476, 155 N.W.2d 17 (1967) (See supra), “the court determined that a proposed resolution that would limit the actions of a plan commission was invalid since ‘city planning is an administrative function’ performed by ‘an administrative body’ – the city plan commission.” Id. (See also “Mt. Horeb: An Invalid Blueprint”; League of Wisconsin Municipalities, Attorney Daniel M. Olson, September 2003; Stewart Aff., Ex. P). As referenced earlier in this brief, the petition clearly abrogates the authority of the Zoning Administrator and Planning Commission when considering land use issues in general and particularly under the Big Box Ordinance.

The remainder of Section 2 in the petition for direct legislation would repeal other city ordinances. Section 2(a) Design Capacity, (b) Level of Service, (c) Queuing Analysis, (d) Existing Traffic Conditions and, (e) Infrastructure Remediation would repeal §300-93(B) Jefferson Code, which requires, as part of the Site Plan approval, the Plan Commission to consider:

“The layout of the site with regard to entrances and exits to public streets, the arrangement and improvement of interior roadways; and the location, adequacy and improvement of areas for parking and loading and unloading, and shall in this connection shall satisfy itself that the traffic pattern generated by the proposed construction or use shall be developed in a manner consistent with the safety of residents and the community, and the applicant shall so design the construction or use as to minimize any traffic hazard created thereby.” (Stewart Supp. Aff., Ex. 8).

Section 2 of the Petition would require the City to complete a Traffic Impact Assessment. (Original Complaint, Ex. 1). Section 8 of the Big Box Ordinance already requires…”Prior to development approval, the applicant’s traffic engineer shall complete and present a traffic impact analysis following Wisconsin Department of Transportation District One guidelines.” (Stewart Aff., Ex. B). The Planning Commission and Common Council already perform a traffic impact analysis. If the petition passed, it would abrogate an nullify Section 8 of the Big Box Ordinance.

Section 1 of the petition would require the City to complete an Environmental Impact Statement. (Original Complaint, Ex. 1). Section 10 of the Big Box Ordinance already requires the Planning Commission to consider “Natural Resources Protection” when determining the conditional use permit. (Stewart Aff., Ex. B, para. 10)

If the petition passed, it would “abrogate and nullify” section 10 of the Big Box Ordinance. Additionally, the Planning Commission is already required by law and ordinance to hold a public hearing on conditional use permits under class 1 notice; not class 2 as required in the petition. (§300-26(B) Jefferson Code; Stewart Supp. Aff., Ex. 7). Section (1)(b) of the petition nullifies that requirement and switches the hands of the “City” to the City Council. That nullifies the Planning Commission’s role. Section 300-90 of the Jefferson Code covers “Site Plan Approval”. (Stewart Supp. Aff., Ex. 8). Section 1(b) of the petition would abrogate, nullify and repeal the role of the Building/Zoning Inspector and Planning Commission when approving the site plan.

Section 3 (Infrastructure Analysis) of the Petition also repeals existing city ordinances. Section 3(a) “Existing Facilities” would repeal the Planning Commission’s consideration of §300-93(c) Jefferson Code, which requires the City Planners to consider “the adequacy of the proposed water supply, drainage facilities, and sanitary and waste disposal”. ( Id. Stewart Supp. Aff., Ex. 8). Again, the reference to “City” in Section 3(c) either nullifies the Planning Commission’s role or repeals §300-93(B) and (C) of the Jefferson Code. Section 3(b) of the petition “Facilities Extension” repeals §300-94 “Effect on Municipal Services” of the Jefferson Code, as well. (Stewart Supp. Aff., Ex. 8)

Continuing on Section 4 of the petition “Community Impact Statement” repeals §300-20 Jefferson Code, which sets the requirements for “Residential Districts”. Likewise, it repeals §300-21 Jefferson Code “Business Districts” and §300-22 “Industrial Districts” which already gives the City the authority to “zone” a piece of property. (Stewart Supp. Aff., Ex. 7). A quick finish of the petition reveals the repealing of existing ordinances:

Petition §4 Community

Impact Statement Repeal/Ordinance/Law

4(a) Traffic and parking §300-93(B) Traffic Requirements (Stewart Supp. Aff., Ex. 8)

4(b) Municipal utilities §300-94 Effect on Municipal Services (Stewart Supp. Aff., Ex. 8)

4(c) Physical and ecological §300-93(a) Physical Characteristics

Characteristics (Stewart Supp. Aff., Ex. 8)

4(d) Character of Land §300-93(a) Physical Characteristics

(Stewart Supp. Aff., Ex. 8)

4(e) Economic impact §300-25 Conditional Uses (Stewart Supp. Aff., Ex. 7)

5 Appeal to Circuit Court §66.0217(11), Wis. Stats.

6 Use of consultants §300-92 Administration and §300-95 Fee (Stewart Supp. Aff., Ex. 8)

7 Cities Right of Recoupment §300-95 Fee and §294-4(D) Professional Review (Stewart Supp. Aff., Ex. 9)

7(a) Special Assessment §66.0701, Wis. Stats.: §7-1 Special Assessments (Stewart Supp. Aff., Ex. 4)

7(b) Impact fee §66.0617, Wis. Stats.

If the court finds that the petition is not contrary to existing ordinances or statutes and therefore does not repeal the above, then the petition is clearly…” Administrative in its nature [as] it merely pursues a plan already adopted by the [city]…” Becker, 100 Wis.2d 680, 686. [Emphasis Added]

EXCEEDS LEGISLATIVE POWERS

The petition directs the city to conduct extensive studies on property that is not within its municipal boundaries (jurisdiction) and to spend the tax payers’ money on those studies. The Wisconsin Constitution gives the power of “Home Rule” to the council.

“…[C]ities…may determine their local affairs of government, subject only to this Constitution and to such amendments of the legislature of state wide concern as with uniformity shall effect every city…” [Art. XI, Sec. 3]

The Wisconsin Legislature defined the role of the City Council:

“Powers. Except as elsewhere in the statutes specifically provided, the council shall have the management and control of the city property, finances, highways, navigable waters, and the public service, and shall have power to act for the government and good order of the City, for its commercial benefit, and for the health, safety, and welfare of the public, and may carry out its powers by license, regulation, suppression, borrowing of money, tax levy, appropriation, fine, imprisonment, confiscation, and other necessary or convenient means. The powers hereby conferred shall be in addition to all other grants, and shall be limited only by express language.” §62.11(5), Wis. Stats. (See also §66.010, Wis. Stats.)

The above statute has been interpreted by the courts to grant to a city “all the powers the legislature could by any possibility conferred upon it.” Hack v. City of Mineral Point, 203 Wis.2d 215 (1931)

As part of the authority to “Home Rule” the council has the ability to annex property after following the statutorily prescribed procedure. §66.0217, Wis. Stats. The Shermans and Pinnows have had a hard row to hoe. After two failed attempts at annexation, there appears to be a favorable council to the annexation. If the restraining order stays intact any longer, the elected officials will be deprived of their Constitutional Right to act!

Plaintiffs have candidates running for the three open alderperson seats that, if successful at election, could change one of the votes needed for annexation. Not considering the lost economic growth from this annexation, …i.e., jobs, taxes, other business, etc…, the law gives the authority for the annexation to the legislative branch of the municipality. The Jefferson Common Council, as it exists today, have the right to act on the annexation requests of the Shermans, Pinnows, and St. Coletta. By obtaining the restraining order, a minority of the people may succeed with making a decision which a majority of the current council feels is in the best interest of the City.

“New dollars invested or spent in a community generate more economic activity, creating a ‘multiplier effect’. The higher the multiplier, the greater is the effect on the local economy. The same applies for new jobs in the community….Similarly, new capital investment in real property generates a continuous revenue stream through property taxes. At the average rate for Wisconsin cities, one million dollars in new business or residential property produces annual property tax revenue of $22,650…” (“THE ECONOMIC DEVELOPMENT IMPACT OF ANNEXATION,” Wisconsin Economic Development Institute, Inc. January 2005, Roger M. Nacker, Ph.D.)

“Cities…are creations of the state legislature and their basic structure and means of administration established by statute. For example, the state legislature assigned city councils…authority to acquire property or manage finances in their respective communities. Wis. Stats. Sec. 62.11(5)… It did not provide any general authorization for the city…electors to share in or review the exercise of these powers by popular referendum except in specific circumstances, such as bond issues. See Wis. Stats. Sec. 67.05” Mt. Horeb: An Invalid Blueprint; League of Wisconsin Municipalities, Attorney Daniel Olson, September 2003. (Stewart Aff., Ex. 1, p. 5)

“Unlike some states…where people reserved certain legislative powers at the time of statehood, the Wisconsin Constitution does not reserve for its citizens a general right to legislate by initiative or referendum at the state or local level. Under the Wisconsin State Constitution, the people delegated all law making powers to the legislature with the adoption of the State Constitution Article IV, Section 1. Wisconsin residents therefore do not have any constitutionally guaranteed right to direct democracy.”…”Direct legislation authority ‘is a creature of statute and its use must comport with the requirements established by the legislature.’” Id. at p. 1 quoting, Heitman v. City of Mauston Common Council, 226 Wis.2d 542, 547, 595 N.W.2d 450 (Ct. App. 1999) (citing Landt v. City of Wisconsin Dells, 30 Wis.2d 470, 478-79, 141 N.W.2d 245 (1966).


THE PETITION MODIFIES STATUTORILY PRESCRIBED PROCEDURES OR STANDARDS

As mentioned above, the petition is invalid for attempting to supersede a number of statutorily prescribed procedures. Sections 66.0217, 66.0219 and 66.0221, Wis. Stats., set forth a detailed procedure for annexation of territory. Again, if the court finds that the petition does not modify law, then it is clearly administrative. See supra Becker.

It further incorrectly cites the “Public Works” competitive bid selection process for hiring the consultants for the many studies. Sec. 62.15, Wis. Stats. applies to public construction of municipal buildings or utilities, not consultants hired to review a parcel of property, not in the city limits, for a known or unknown development prior to annexation. [Emphasis Added]

Section 5 of the petition clearly modifies standing to appeal under Wisconsin Law. It gives standing to “any person who is a resident of the lands to be annexed or the City may, within thirty (30) days…”. Sec. 66.0217, Wis. Stats. does not give residents of the City (who do not reside in the territory to be annexed) standing to challenge an annexation. Second, §§66.0217(11) and 893.73(2), state that a challenge to an annexation must be filed within 90 days after the adoption of the annexation ordinance. The petition grants a 30-day window. Furthermore, Wisconsin Law is clear “an appeal shall not stay the conduct of the referendum election, if one is ordered…” §66.0219(7) Wis. Stats. Each of the appeal statutes express an intent to quickly hear any appeals and keep the annexation process moving along. Id. See also, §66.0217(11)(b) Wis. Stats.

Again, Wisconsin Laws concerning annexation are clear about the process and procedure to be followed. §66.0217; 66.0219 Wis. Stats. The proposed ordinance would force challenge procedures onto the legislatively created scheme. The Department of Administration reviews each Petition for Annexation to determine if the annexation is “in the public interest.” §66.0217(6) Wis. Stats. The statute clearly defines “public interest”. §66.0217(6)(c) Wis. Stats. The different impact studies required by the proposed ordinance are seeking to redefine what must be done for an annexation to be found in the “public interest”.

The petition conflicts with the law on judicial review of annexation. A court reviewing an annexation under §66.0217, Wis. Stats. may not “inquire into the wisdom of the annexation before it or determine whether the annexation is in the best interest of the parties to the proceedings or of the public.” Town of Pleasant Prairie v. City of Kenosha, 75 Wis.2d 322, 327, 249 N.W.2d 581, 585 (1977)

Sec. 66.0307, Wis. Stats. has specific procedures for boundary line agreements. To change a line, a municipality must cooperate and agree on the plans, effect on municipal services, the environment, housing, physical development of territory, and land use: The Department of Administration has identified factors it must find in order to determine whether the boundary change is in the best interest of the effected citizens. The petition would attempt to modify this procedure, or impose its own procedure on any boundary agreement reached by the City of Jefferson.

Section 66.1311, Wis. Stats. contains procedures for the City’s acquisition of blighted property. The proposed ordinance would attempt to modify this procedure, or impose its own procedure on any property purchased by the City of Jefferson qualified as blighted property.

Timelines: petitions for direct annexation must be acted upon within 120 days of being submitted. See §66.0217(8), Wis. Stats. The Department of Administration has 20 days to determine if the annexation is in the “public interest”. §66.0217(6), Wis. Stats. How can it be said that a petition such as this requiring all the studies to be completed wouldn’t modify those statutory timelines?

Lastly, Section 7 of the petition is the “City’s Right of Recoupment”. We already addressed the hiring of consultants conflict (See 62.15, Wis. Stats.; Public Construction Contracts), but now the petition would authorize the City to special assess the cost of the studies completed prior to annexation to the…”properties developed on any lands to be annexed within a three (3) year period from the completion of the annexation process,”…(Original Complaint, Ex. 1; Petition 7(a)). However, the special assessment statute can only be used to assess improvements to real property. See §66.0703, Wis. Stats….”The amount assessed against any property for any work or improvement which does not represent an exercise of the police power may not exceed the value of the benefits accruing to the property.”…§66.0703(1)(b), Wis. Stats.

Likewise, impact fees under §66.0617, Wis. Stats. can be used by a municipality once a facilities needs assessment is done on the “public building” and the legislature has specified “Standards for Impact Fees”. §66.0617(6), Wis. Stats. The “City’s Right of Recoupment” section of the petition would leave the City tax payers holding the bag” and paying the cost of these studies as the City would exceed its jurisdiction if it tried to collect the costs under the provisions contained within the petition for direct legislation. Alternatively, if enforceable, the “City’s Right of Recoupment” section of the petition also conflicts with the existing City Code. Section 294-4(D) “Professional Review” authorizes the City to hire consultants and…’apply the charges for these services to the petitioner.”… (Stewart Supp. Aff., Ex. 9)

CONCLUSION

The Plaintiffs are not entitled to an injunction based upon the expressed language of the statute. The laws of the state, as well as direct legislation, cannot be applied retroactively. The ordinances that exist at the filing of the petition for direct legislation is the “status quo”. The irreparable harm (if any) was created by Plaintiffs’ own delayed filing. With the requisite showing of standing under Wisconsin Law, Plaintiffs’ remedy is to appeal the annexation request. Plaintiffs will not be successful on the merits.

When a petition for direct legislation requires a city to modify a procedure, it has already established by law, it has been found to be administrative. When it deals with zoning or city planning, it has been found to be administrative. The petition tells the city how to do the annexation and, therefore, is administrative. The petition targets a specific annexation and directs the city to spend funds which were not otherwise budgeted. The petition is administrative and clearly repeals several existing city ordinances. It directs the city to exceed its legislative powers by modifying statutorily prescribed procedures or standards for all the reasons stated by the Supreme Court in Mt. Horeb, it is not the proper subject for direct legislation.

Dated this 24 th day of January, 2006.

LAITSCH & BRANTMEIER, LLC

Attorney for the City of Jefferson

________________________________

Bennett J. Brantmeier

WI State Bar #1019428

100 N. Main Street, Suite 203

Jefferson, WI 53549

(920) 674-6220

BJB/Jefferson, City of/Supplemental Brief 010406

The annexation procedure is fully addressed later in this brief, see pages 11 and 12.

The City’s Master Plan shows that the proposed 22 acre site of the Sherman’s and Pinnow’s is the only vacant land suitable for a supercenter. See website www.jeffersonwis.com/eng&.htm

The petition repeals the City’s Big Box Ordinance, which will be addressed later in this brief.

The court in Hietzman supra found that zoning issues are not the proper subject for direct legislation.