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CCR1997206COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #206-97 AMENDED DIRECT LEGISLATION PETITION REGARDING RESTRICTIONS TO ZONING CHANGES IN MOORLAND ROAD CORRIDOR WHEREAS, on August 15, 1997, there were filed in the office of Clerk-Treasurer certain petitions requesting the adoption of an ordinance relating to the City not rezoning certain land for business or industrial use for a period of not less than two years; and WHEREAS, the Clerk-Treasurer certified on August 26, 1997 that she had made a careful examination of the petitions to determine their sufficiency and had determined that the number of qualifying petitioners meets the requirements of Section 9.20, Wisconsin Statutes, in that they equal or exceed 15 percent of the votes cast Clerk-Treasurer had determined that more than the required 1039 valid for governor at the last general election in the City. The signatures have been verified; and WHEREAS, the Clerk-Treasurer further certified on August 26, 1997 that she had reviewed the form of the proposed ordinance and determined that Section 9.20, Wisconsin Statutes, does not authorize such a form. Under the statute, the proposed legislation must be in the form of either a resolution or an ordinance; and WHEREAS, the Clerk-Treasurer further certified in her August 26, 1997 certification the particulars of the insufficiency of the documents submitted to her and notified the person designated; and 0 WHEREAS, on August 28, 1997, the attached letter and Ordinance to Moorland Road corridor) were submitted to the Clerk-Treasurer without Create Chapter 17, Section 6.13 (To restrict zoning changes in the any new petitions; and WHEREAS, the Clerk-Treasurer has a copy of the original petitions; and WHEREAS, on September 3, 1997, the Clerk-Treasurer certified by the attached certificate that the documents submitted are sufficient and are in substantial compliance with Section 8.40, Wisconsin Statutes, as to proper form; and WHEREAS, the City Attorney has submitted a legal opinion dated the 8th day of September, 1997. NOW, THEREFORE, BE IT RESOLVED THAT THE COMMON COUNCIL OF THE CITY OF MUSKEG0 HEREBY DOES AS FOLLOWS: zoning changes in the Moorland corridor without alteration nor refer 1. Not adopt the document referred to as an ordinance to restrict it to a vote of the electors for the following reasons : A. The ordinance proposed is administrative in nature and not appropriate for direct legislation; and Reso. #206-97 B. The ordinance as proposed is in direct conflict with prior ordinance and resolution and constitutes an implied repealer of that legislation in that the City of Muskego ordinances, including Ordinance 17.3.06 set forth very specific procedures as and is in conflict with prior City Resolution #145-97 adopted to rezoning requests and how they will be handled by the City; June 10, 1997; and C. The proposed ordinance would exercise a power that has not been conferred upon the Common Council of the City by statute or by constitution. The proposed ordinance would prohibit the City from rezoning certain property in a certain manner for two years. Wisconsin Statutes 562.23 states certain requirements as to considering the amending of zoning ordinances and also sets forth certain protections for persons owning property and other persons in the area of the property to be considered for rezoning. State law does not allow the City the power to prohibit the rezoning of the property in question for a two-year period; and D. State law prescribes different procedures from what is proposed by the direct legislation petition. For example, as stated above, when rezoning is to be considered, State law establishes a §62.23(3) to be followed for amendment of a comprehensive plan; procedure. There is also a procedure in Wisconsin Statute and a E. No new petitions were submitted with the ordinance when the form of the ordinance was corrected. Although the City has the original petitions, it is unclear as to whether or not those original petitions were submitted in support of the new proposed ordinance. DATED THIS 9TH DAY OF SEPTEMBER , 1997 CITY OF MUSKEG0 David L. De Angelis, Mayor This is to certify that this is a true and accurate copy of Resolution #206-97 which was adopted by the Common Council of the City of Muskego. 9/97 jep COMMON COUNCIL - CITY OF MUSKEGO RESOLUTION #206-97 DIRECT LEGISLATION PETITION REGARDING RESTRICTIONS TO ZONING CHANGES IN MOORLAND ROAD CORRIDOR WHEREAS, on August 15, 1997, there were ordinance relating to the City not Clerk-Treasurer certain petitions or industrial use for a period of WHEREAS, the Clerk-Treasurer had made a careful sufficiency and had petitioners meets Statutes, in of the votes cast the City. The the required 1039 valid signatures have been verified; and WHEREAS, the Clerk-Treasurer on August 26, 1997 that she had reviewed the ordinance and determined that Section does not authorize such a form. Under must be in the form of either a WHEREAS, the 26, 1997 certification Moorland Road corridor) were submitted to the Clerk-Treasurer without any new petitions; and / WHEREAS, the Clerk-Treasurer has a copy of the original petitions; and WHEREAS, on September"3, 1997, the Clerk-Treasurer certified by the are in substantial compliance with Section 8.40, Wisconsin Statutes, attached certificate that the documents submitted are sufficient and as to proper form; and WHEREAS, the City Attorney has submitted a legal opinion dated the 8th day of September, 1997. i / J MUSKEW HEREBY DOES AS FOLLOWS: NOW, THEREFORE, BE IT RESOLVED THAT THE COMMON COUNCIL OF THE CITY OF corridor; or 1. Adopt an Ordinance to restrict zoning changes in Moorland Wisconsin Statutes; or 2. Refer said Ordinance to a vote of electors per Section 9.20 3. Not adopt the document referred to as an ordinance to restrict zoning changes in the Moorland corridor without alteration nor refer It to a vote of the electors for the following reasons: A. The ordinance proposed is administrative in nature and not 0' appropriate for direct legislation; and L - Reso. #206-97 B. C. D. E. The ordinance as proposed is in direct conflict with prior ordinance and constitutes an implied repealer of that legislation in that the City of Muskego ordinances, including Ordinance requests and how they will be handled by the City; and 17.3.06 set forth very specific procedures as to rezoning The proposed ordinance would exercise a power that has not been conferred upon the Common Council of the City by statute or by constitution. The proposed ordinance would prohibit the City years. Wisconsin Statutes 62.23 states certain requirements from rezoning certain property in a certain manner for two as to considering the amending of zoning ordinances and also sets persons in the area of the property to be considered for forth certain protections for persons owning property and other prohibit the rezoning of the property in question for a two-year rezoning. State law does not allow the City the power to period; and State law prescribes different procedures from what is proposed by the direct legislation petition. For example, as stated above, when rezoning is to be considered, State law establishes a procedure. There is also a procedure in Wisconsin Statute and NO new petitions were submitted with the ordinance when the form of the ordinance was corrected. Although the City has the original petitions, it is unclear as to whether or not those original petitions were submitted in support of the new proposed ordinance. 62.23(3) to be followed for amendment of a comprehensive plan; DATED THIS DAY OF , 1997 CITY OF MUSKEGO David L. De Angelis, Mayor This is to certify that this is a true and accurate copy of Resolution #206-97 which was adopted by the Common Council of the City of Muskego. Clerk-Treasurer 9/97 jep CITY CLERK-TREASURER'S OFFICE CITY OF MUSKEG0 CERTIFICATE RELATING TO PETITIONS FOR DIRECT LEGISLATION AS TO AMENDED ORDINANCE On August 26, 1997, I, Jean K. Marenda, Clerk-Treasurer of the City of Muskego, certified that on August 15. 1997 there were filed in my office petitions requesting under Section 9.20, Wisconsin Statutes, the adoption of an ordinance proposed to state: "In conformity with the spirit of the 1991 Comprehensive Plan, the City of Muskego, for a period of not less than two years from the effective date of this ordinance, shall not rezone to a use that would thereby permit additional business or industrial use, any portion of that area of land bordered on the East by Tess Corners Drive; on the South by Woods Road; on the West by Bay Lane and on a straight line, continuing North from the intersection of Bay Lane and Janesville Road to Martin Drive; on the Northwest by Martin Drive; on the North by College Avenue" On August 26, 1997, I further certified that I made a careful examination of the petitions to determine their sufficiency and determined that the number of qualifying petitioners meets the requirements of Section 9.20(1), Wisconsin Statutes, in that they equal or exceed 15 percent of the votes cast for governor at the last general election in the City. I determined that more than the required 1039 valid signatures have been verified. On August 26, 1997, I further certified that I reviewed the form of the proposed ordinance and 0 determined that Section 9.20, Wisconsin Statutes, does not authorize such a form. Under the statute, the proposed legislation must be in the form of either a resolution or an ordinance. In my certificate of August 26, 1997, I further stated the particulars of the insufficiency of the documents submitted to me and notified the person designated of the insufficiencies. On August 28, 1997, the attached letter dated August 28, 1997 was submitted to me along with a document entitled, "An Ordinance to Create Ch. 17, Sec. 6.13 (to restrict zoning changes in the Moorland Rd. Corridor), both of which are attached hereto. No new petition was submitted. My office has the original petitions on file. I hereby certify that the documents are sufficient and in substantial compliance with Section 8.40, Wisconsin Statutes, as to proper form, and I am submitting the same to the Common Council. Certification is not provided as to the legality or appropriateness of the petition and other documents submitted. Dated in Muskego. Wisconsin this 3d day of September, 1997 CITY OF MUSKEG0 PRESERVE MUSKEG0 Dediuted To The Quality Of Life. -1NC.- MUSKEGO, INC. P.O. Box 425 Muskego. WI 5315( CC! yrr ALpR A L b~arn~~ ry fi.7-T August 28,1997 R Try. rn0m.e OK6: CiEP& ad/aph7 Jrc/ Y 8-678- 97 9"- Ms. Jean K. Marenda, CMC Clerk-Treasurer City of Muskego W182 S8200 Racine Ave. Box 903 Muskego, WI 53150-0903 Re: Direct Legislation petition Dear Ms. Marenda: Enclosed please find, pursuant to Sec. 9.20 stats., the amendment to the petition previously filed with your office. I believe it corrects all the insuffiaenaes noted in your certificate and letter to me. Please file the amendment with the petitions you have in your office and forward them to the Common Council pursuant to the above referenced statute. Thank you for your attention to this matter. Very truly yours, Wayne Wm. Peterson President, Preserve Muskego AN ORDINANCE TO CREATE CH.17, SEC. 6.13 zoning changes in the Moorland Rd. Corridor) 0 THE COMMON COUNCIL OF THE CITY OF MUSKEGO. WAUKESHA COUNTY, WISCONSIN, DO ORDAIN AS FOLLOWS: Section 1: Chapter 17, Sec. 6.13 of the Municipal Code of the City of Muskego, Wisconsin, is hereby created with the following language : 6.13. In conformity with the spirit of the 1991 Comprehensive years from the effective date of this ordinance, shall not Plan, the City of Muskeqo, for a period of not less than two business or industrial use, any portion of that area of land rezone to a use that would thereby permit additional bordered on the East by Tess Corners Drive; on the South by Woods Road; on the west by Bay Lane and on a straight line, continuing North from the intersection of Bay Lane and Janesville Road to Martin Drive; on the Northwest by Martin Drive; on the North by College Avenue. I Section 2: Any other ordinance or portion of an ordinance that is repealed as to those terms that conflict. in conflict with the provisions of this ordinance are hereby Section 3: This ordinance shall be in full force and effect from and after its passage either by the Conxon Coilncil or by election I 1 by the voters and its publication. PASSED AND APPROVED THIS DAY OF , 199-. CITY OF MUSKEGO David L. De Angelis, Mayor DAG W. ARENZ JOHN P. MAW. OONALD 9. MOLTER. JR. H, STANLEY RIFFLE. COYRTCOHHIS5IONEII CbU~OHMI5SIONCA JUN.MARIC REILLY RICK 0. TRINDL CUIC J, LARSON VIA FAX TOTAL PAGES: 5 LAW or.,cc, 0. ARENZ. MIJLTER. MACY Z RIFFLE, S.C. ?2Q N. EAST AVCNUE P.O. eon wa WAUKESHA. WISCONSIN 531a7.13.aa September 8, 1997 Mayor David L. De Angelis CITY OF MUSKEG0 Post Office Box 903 Muskego, Wisconsin 53150 Re: Direct Leaislation/Bu~;iness or Industrial Use Dear Mayor De Angelis: You have requested an opinion on the qcestion of what actions the Legialation petition which has been submitted to the City and Common Council may take regarding the above-mentioned Direct certified to the Common Council by the City Clerk on September 3, 1997 * Section 9.20(1) of the Wisc:onsin Statutes provides that: e "A number of electors equal to at least fifteen percent of the votes cast fox Governor a: the last general election in their Cicy or Village may sign and file a petition with the City or Village Clerk requesting that an attached proposed ordinance or resolution, without alteration, either be adopted by the Common Council or Village Board or be referred to a vote of the electors." Section 9.20(4) provides t:nat: The Common Council or Village Board shall, without alteration, either pass the ordinance or resolution within 30 days following the date of the Clerk's final cercificate, or submit it to the electors at the next Spring or general election, if the election is more than six weeks after the date of the Council's or Board's action on the petition, or the expiration of the 30 day period, whichever first occurs. If there are six weeks or less before the election, the ordinance or resolution shall be voted on at the next election thereafter. The Council or Board by a three- fourths vote of the trembexs-elect may order a special election for the purgose of voting on the ordinance or bAW ""IICCJ or ARENZ, MC~LTER, MACY & RIFFLE, S.C' Mayor David L. De AqgelFs -2- September 8, 1997 more thar. one special election for direcc legislation in any resolution at any time prior to the zext election, but not six month period. 'I This stature requires that the Common Council either: (1) Pass the ordinance without alteration within 30 days after the Clerk's certi.fication, or, (2) Submit it to the electors at the next: election. The Wieconsin Supreme Court:, however, "has carved out certain may properly refuse to accept either of the statutory choices and may exceptions which indicate t.hat, under some circumstances, the Council instead reject both of then\." gtate ex reL. Althouse v. Madison, 79 Court are: OWis. 2d 97, 107 (1976) . The exceptions carved out by the Supreme The ordinance or resolution is administrative rather than legislative in character; The ordinance or resolution i6 in direct conflict with a prior rcoolution or ordinnnee and cnnstitutes an imwlied repealer of that Legislation; The ordinance or resolution attempts to exercise powers not con€erred on a municipal governing body by Statute or constitution7 The proposed legislation is within the governing body's powers, but couL3 not be exercised within the time limits binding on the bzdy; proposed. State Laws prescribe different procedures from what is - Id at 108. City Clerk proposes a general ordinance that would limit the power of It is my understanding that the direct legislation as certified by the the City of Muskego for a period ot not less than two years from the permit additCona1 business, or industrial use on certain land referred to in said petition. The Common Council can either adopt the proposed effective date of said ord.inance from rezoning to a use that would LAW OrllCV 0,- ARENZ, MOLTER, MACY & RIFFLE, S.C. Mayor David L. De Angelis -3 - September 8, 1997 ordinance withou: alteration, refer the ordinance, withour alteration, to a vote of the electors at :he next Spring or general election, or reject the ordinar.ce ail tosether based on one or more of the exceptions carved. out by th.e WisconsLr. Supreme Court. We believe that there are several bases on which the Council could reject the proposed ordinance and by which the ordinznce could be challenged in court if voters at a referendum, it were to be either ad0pte.d by the Comnon Council or approved by the Our first concern relates t.0 whether or not the proposed ordinance is ordinance which would prohibit the City of Muskego for a periad of not legislative in character. it is our opinion that the proposed rezoning to a use that wou1.d permit additional business ox industrial less than two years from the effective date of said ordinance from use on land referred to in said petition is administrative in nature @and is not a proper subject: for direct legislatian. We believe a6 the ordinance is administrative, the Council could reject the ordinance as not being an appropriate subject for direct legislation. The second question is whether the proposed ordinance is in direct conflict with a prior ordinance and constitutes an implied repealer of that legislation. State hw, which shall be discussed later in this whereby the City, through (its Plan Commission and Common Council, may opinion, and municipal ordinances set forth a particular procedure consider rezoning requests. For example, Muskego Ordinance 17.3.06 sets forth a very specific procedure concerning who can commence rezoning requests and once a request is made, how they will be considered by the City. The procedure includes Plan Commission consideration and recommendation, a public hearing, Council action and a specific procedure for Protest that may be used by property owners in the are8. In our opinion, adoption of the ordinance set forth in the petition would be an implied repealer of that legislation in that it would prohibit the City from rezoning the property in question to and in our opinion, in violation of the rights of owner6 of the land. certain USeS within a two year period, contrary to present ordinancee, The third question is whether the proposed ordinance would exercise a power that ha6 not been conferred upon the Common council of the City by statute or by the constitution. The proposed ordinance seeks to prohibit the City from rezoning the property in question to certain uses for a two year period.. Wisconsin Statute 962.23, most specifically (71, deals with the grant of zoning power to the City. This statute, again, sets forth certain provisions for the procedure e LAW ow>ccs 0, ARENZ. MOLTER, MACY & RIFFLE, S.C. 1 Mayor David L. De Angelis -4- September 8, 1997 certain protections for area property owners by way of protest. In to be followed by the City ir. amending the zoning ordinance and also our opinion, this statute, and other State law, does not allow the City rhe power to prohibit the rezoning of The property in question to Council doe6 not have the authority to exempt the City of Muskego from the uses stated in the petition for a two year period. The Common State Statutes by enactment of a general ordinance. The rourth question is whether the legislation proposed by the petition is within the gove:rning body’s powers, but could not be exercised within the time limits binding on the City. We do not proposed legislation is aot, within the governing body‘s powers. address this question as WE: have already indicated in our opinion the The fifth question is whether State laws prescribe diEferent procedures from what is proposed by the direct legislation petition. In our opinion, as discusssd above, State laws do prescribe a different procedure from that which is proposed. Furthermore, the proposed ordinance refers t:o the “1991 Comprehensive Plan”. It is my understanding that there il: no such document but, apparently, the petitioners are referring I:V ~hr 1992 Cornprchonoive Land UOP Dlnn. State Statutes 562.23 (3) p;rovides generally, and in part, for proposed ordinance is in conflict with §62.23(3). Therefore, in our amendment of such a plan by the Plan Commission. In our opinion, the opinion, the Common Counci:l does not have the authority to exempt the City of Muskego from the requirements of these State laws. Furthermore, the ordinance proposed by the petitioners is an amendment to the Muskego Zoning Code. Wisconsin Statute §62.23(7) (d) specifically requires that a public hearing be held and certain public notice be givon. A6 the direct legislation statute requires that the proposed ordinance be adopted without alteration within 30 days after the Clerk‘s certification or be submitted to the electoxs at the next ’ election, it is our opinion that this was not the type of legislation contemplated by the direct legislation statute, 69.20, and is in conflict with State law. Therefore, in our opinion, the Common Council does not have the authority to exempt this ordinance from the requirements of State law. We believe, for all o€ the: reasons stated above, that the Council proposed ordinance should be adopted by the Common Council or by the could reject the proposed ordinance. We also believe that if this 0 0 LAW or.1crs or ARENZ, MOLTER, MACY & RIFFLE, S.C. Mayor David L. DE Angelis -5- e:eccors by referendum, the validity of eke ordinance could be chalLer.3ed on these same grounds submit new original petitic'ns and signatures with the proposed It is our understanding that the petitioners in this matter did not ordinance that was certified by the Clerk on September 3, 1997. While §9.20(3), Wisconsin Statutes, is not clear as to whether it is necessary for the petitioners to submit new original signatures, it is possible that this issue cculd be raised, along with those discussed above, as to the validity crf this ordinance, if adopted. Because the wording of the proposed ordinance certified by the Clerk on September 3, 1997 is substantially the sme as that submitted on the original petitions, we do not believe that this, in and of itself, would be grounds €or the Council to reject the proposed ordinance. Section !5.01(1) provides that "Except as otherwise provided, Chapters 5-12 can be ascertained from the proceedings, notwithstanding informality shall be construed to give effect to the will of the electors, if that or failure to fully comply with some of their provisions." It is our opinion that since the Cit:! Clerk had previously certified the resubmitted and certified by the clerk on September 3, 1997 was signatures and petitions 81; being adequate and that the ordinance as different only in that it was put in general ordinance form, the petition is adequate as to form. In summary, it is our opinion, for the reasons stated above, that the proposed ordinance would probably be invalid if adopted. The Common Council can, however, choose to adopt this ordinance or: to refer it to of the ordinances validity would be moot. If the ordinance is the electors. If the rneas'ure is defeated by the electors, the issue approved by the electore, the City would be subject to a legal would choose to challenge the ordinance. The Council may also choose , challenge in the event that any individual, or group of individuals action could also be challenged by legal action brought by the to reject the ordinance based upon the issues discussed above. This petitioners , Sincerely, L. L. DSM/pw cc: Ms. Jean Marenda, Clerk (Via Fax, 5 Pages) Donald S. Molter, Jr.