CM051998
COMMON COUNCIL - CITY OF MUSKEGO (APPROVED 5/26/98)
MINUTES OF SPECIAL MEETING HELD MAY 19, 1998
The meeting was called to order at 6:08 PM by Mayor De Angelis. Also present were
Aldermen Slocomb, Chiaverotti, Patterson, Pionek, Salentine, Sanders, Woodard, City
Attorney Molter and Clerk-Treasurer Marenda.
The Clerk-Treasurer stated the meeting was noticed in accordance with the Open
Meeting Law on 5/18/98, and read the notice of closed session.
COMMITTEE REPORTS
Pionek moved for acceptance of the minutes of the Public Works Committee special
meeting held 5/19/98 as read by the Mayor. Salentine seconded. Discussion followed
on effect on run-off with using pure salt on roads. Slocomb reported information to date
indicates it doesn’t seem to be a factor but will be monitored. Purpose is to get rid of
gravel because it loads up the ditches, difficult to get it all picked up in spring, and the
sand/salt combination is not as effective in keeping the roads clear of ice and snow.
Motion carried.
NEW BUSINESS
Discussion and possible action regarding litigation as to adult family homes.
Patterson requested privilege of the floor for Atty. Patrick Berigan, to speak on behalf of
the neighbors. Permission granted. Atty. Berigan stated in April, 1998, Brotoloc
Company proposed to set up a residential treatment facility for handicapped and brain
injured individuals at S68 W12699 Bristlecone Ln. He indicated he hadn’t looked at the
state law, but it was his understanding the City has very little options, and if the
application is proper the City can’t prevent. Berigan said concerns expressed by
neighbor Bill Seiden are: 1) City doesn’t have any options over zoning for such a
licensed facility under state law; 2) Concerned about reduction of property values in
area that neighbors can do nothing about. They are asking the Council to have the
City bring a lawsuit against the state because this is a taking without compensation.
The state, by forcing this statute on the community causes property values to be
reduced, taking value away from the property owners as well as the community getting
less property tax revenue. He understood other communities are fighting on this or
similar issues. Another issue is this is a burden on the taxpayers for services because
there are frequent calls for paramedics. Absent that, if it is the opinion of the city
attorney that the City is unable to sue the state, are there other alternatives to the
landowners,; such as if they bring a private cause of action can the City be a party to
the action in some respect?
Slocomb moved to convene in closed session pursuant to §19.85(1)(g) Conferring with
legal counsel for the governmental body who is rendering oral or written advice
concerning strategy to be adopted by the body with respect to litigation in which it is or
is likely to become involved, more specifically as to an adult family home or homes.
Patterson seconded, motion carried by roll call vote of 7-0. It was noted action may be
taken in closed session. The Common Council will then reconvene into open session
to continue with agenda items.
Common Council Minutes Page 2
May 19, 1998
The Council reconvened into open session.
Slocomb stated in terms of the City pursuing an injunction, all the information gathered
shows we have no power to do that. Atty. Molter stated he didn’t feel the City could be
successful in this regard because we would probably have to file a claim against the
state and maybe the federal government before filing suit. The City, per Wisconsin law
probably does not have standing to challenge the constitutionality of the state statutes.
Injunctive relief will generally not be granted unless you can prove reasonable
possibility of success, no adequate remedy at law, and irreparable harm - none of
which he believed is present. As to merits of the case, limited research indicates that
the federal and state governments have the power to pass the laws in question. He
also noted that this is a police power action of the state, and not a taking.
The Mayor noted state law which grants the power to cities to regulate zoning does not
allow us to regulate CRBF’s and adult family homes in this situation. There are other
regulations which allow for the review of the use of the property in no less than 11
months or more than 13 months, which the Council has the ability to do. The Council
can regulate the number of homes to no more than one within 2500’ of another. The
state does not give us the authority to challenge on constitutional issues. Based on all
these factors, he felt the municipality has no authority to file an action against the state
for the benefit of potentially blocking the placement of this adult family residence.
Slocomb moved to not pursue legal action in terms of a temporary injunction on the
adult family home issue. Salentine seconded. Motion carried 6-1 with Patterson voting
no.
The Mayor asked if the City would be interested in participating with property owners in
any action as to the contribution of money or otherwise. He stated he knew of no
similar previous action for the benefit of private property. Patterson stated he knew this
could set a dangerous precedent. The property owners have rights to file and the City
doesn’t, but it would help the City to control zoning so this doesn’t happen in other
places. It would be a benefit to the City to cooperate in some way and we should find a
way of being of assistance. Slocomb felt the City could be of assistance by providing
open access to information from the assessor’s office and other City information. He
did not feel the City should fund a private action and agreed it would set a dangerous
precedent. Patterson said he would agree if it only applied to this property, but felt if
the law was changed it would benefit the entire City in the future. Mayor said it could
depend on what specific action is taken. The City has taken the position in the past not
to fund personal property issues, such as matters relating to the drawdown of Big
Muskego Lake.
Chiaverotti moved that the City not take the position to financially support any private
parties in any action the City is not willing to do ourselves because it does set a
precedent. Salentine seconded, motion carried 6-1 with Patterson voting no.
Common Council Minutes Page 3
May 19, 1998
Sanders moved to adjourn at 7:13 PM. Woodard seconded, motion carried.
Respectfully submitted,
Jean K. Marenda, CMC
Clerk-Treasurer
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