Village attorney advises board to go eminent domain route
BAY CITY -- Bay City Village attorney Robert Loberg had quite a bit to say at the June 15 meeting about a Direct Legislation petition submitted to the village by Bay City resident Kent Carlson on behalf of a contingent of Bay City voters.
According to Loberg, the request filed with Bay City village clerk Shawnie King May 27 didn’t meet the requirements of the state’s direct legislation statute and was returned.
Attorney William J. Mavity, who represents Bay City resident David Meixner in an eminent domain/adverse possession land dispute with the village, said the petition asks that a proposed nature trail project (which would cut through portions of Meixner’s land) be put to a public vote. The petition collected 36 signatures, Mavity said, more than enough for the number of signatures required (which is 15 percent of the votes cast for governor at the last general election in a city or village). However, Mavity admits he failed to type the word “Petition” at the top of the documents, which made them ineligible for filing.
“It was an unfortunate oversight on my part and neither Steve (Meixner, David’s brother), nor Kent Carlson has any responsibility for the error in the petition,” Mavity said in a letter to petitioners.
Because the petitioners may not have known they were signing a petition, new ones were circulated and certified. They were hand-delivered and filed June 24, Mavity said.
The statute provides a procedure by which voters may compel a village board to pass a proposed ordinance or resolution or put the proposed ordinance or resolution before the public for a popular vote.
Loberg addressed the legality of the direct legislation statute by citing a 2003 Wisconsin Supreme Court case in which the court did not determine whether the ordinance proposed would be valid if adopted.
He also cited a September 2003 article by League of Municipality attorney Daniel Olson, who concluded a village board is not required to acquiesce to a proposed ordinance which imposes a referendum limitation on future board actions.
So what’s next for the village? Loberg said a valid petition must be considered by the village board, but based upon Olson’s article, which isn’t contradicted by any Wisconsin law, the board shouldn’t adopt the ordinance because it would be invalid and unenforceable.
Instead, the matter should be put to the electors at the next election, Loberg said. But even if the ordinance is passed at the election, it’s not necessarily valid, he added.
“If by some strange stretch of the imagination, if the direct legislation petition resulted in a valid ordinance, you would still find yourselves morally and legally bound to protect the public’s best interest,” Loberg said. “Which poison do you pick? Litigation or direct legislation?”
Loberg advised the board to take the eminent domain course of action, stating in a letter to Rep. Adam Jarchow (R-Balsam Lake) and Sen. Tom Tiffany (R-Hazelhurst), who held a press conference on Meixner’s land, “The eminent domain process puts an end to the matter. It confirms public rights in a portion of the street. It gives Mr. Meixner something for lands which he claims are his. It likely save the Village taxpayers because they spend less in settling the ownership issue.”
The direct legislation request will be discussed by the village board at 6:30 p.m. Wednesday, July 13 at the Bay City Village Hall.