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CCR1977254RESOLUTION #254-77 (As Amended) DIRECTING THE MUSKEG0 POLICE DEPARTMENT TO TO ISSUE CITATIONS AGAINST MUSKEG0 RENDERING COMPANY WHEREAS, at the regular meeting of the Public Welfare Committee held on October 12, 1977, the following motion was approved Common Council that approval be given to cite "That the Welfare -Committee recommend to the the Muskego Rendering Company by the Muskego Police Department upon citizen complaint for malodorous odors emanating from the.Muskego Rendering Company-under- provisions of Section 10.03 -- Public Nuisance,~_and -that: the Common Council directs -.the :City. attorney- to -initiate a nuisance citation under-the City's nuisance . ordinance,=.Section 10.03.". THEREFORE;=BE"IT ~RESOLVEDrthat the Common council of the.-City of Muskego, upon the recommendat~ion of the -Public Welfare~ Committee, does hereby approve of the Muskego Police Department citing the Muskego Rendering Company upon citizen-complaints for malodorous odors ema nating from the Muskego:Rendering Company under provisions of Section 10.03-of the city!.s Municipal-Code.-. Public ,Nui.sance, "- and dir-ects ,~the :City iAttorneyl,.to ,init.iate .a nui'sance. citation under , - the 'Cityl'-s 'nuisance o~dinBnce:;-.-Sec'tion.-1-0.';03 :;"! \ PUBLIC WE Ald. Ralp'h R. Tomczyk v" ATTEST. City Clerk . I Wl02 SBZOO RACINE AVENUE * MUSKEGO. WISCONSIN 53150 November 9. 1977 I, Bette J. Bowyer, City Clerk of the City of Muskego, do hereby certify that on November 9, 1977, the Mayor of the City of Muskego, submitted to this office his.,i;iifention to veto Resolution #254-77, entitled, Directing the Muskego Police Department to Issue Citations Against Muskego Rendering Company, which was adoped by the Common Council on November 8, 1977. . Ii I / RESOLUTION #254-77 DIRECTING THE MUSKEGO POLICE DEPARTMENT TO TO ISSUE CITATIONS AGAINST MUSKEGO RENDERING COMPANY WHEREAS, at the regular meet Committee held on October 12 motion was approved: "That the Welfare Corn the Common Council th to cite the Muskego R the Muskego Police De complaint for malodor of Section 10.03 - Pu the Muskego Rendering THEREFORE, BE IT RESOLVED t Public Welfare Committee, d the City of hluskego, upon r Muskego Police Department c Company upon citizen compla provisions of Section 10.03 emanating from the Muskego Code - Public Nuisance. DATED THIS DAY OF , 1977. ATTEST : ""_ Ald. Mark E. Pienltos Ald. Thomas J. Van Lanen Ald. Ralph R. Tomczyk November 22, 1977 TO: THE HONORABLE ALDERMEN OF THE CITY OF MUSKEG0 Gentlemen: Resolution #254-77, As Amended, entitled, Directing the Muskego Police Department to Issue Citations Against Muskego Rendering Company. On the 8th day of November, 1977, your honorable body adopted The thrust of the resolution was that the Common Council approve of the police department citing the rendering plant upon citizen complaint for violation of Section 10.03 of the Municipal Code and further that the City Attorney is directed to institute a nuisance citation under the city's 'nuisance ordinance. The resolution resulted from a series of complaints. from several citizens that the police department has refused to cite the rendering plant for a violation of Section 10.03 of the Municipal Code. it appeared to me that it was not a question of whether or not the citing of the Muskego Rendering Company would resolve the problem During several discussions among the committee members and citizens . but only that the owner be punished for creating it. In reviewing the action taken by your body I do not take issue with the fact that problems have occurred due to malfunctioning of some portion of the operation of the company's equipment and possibly poor housekeeping. What I do object to, however, is the Common Council (legislative branch) imposing its will upon the law enforce- ment agency and the city attorney's office. This, in my opinion, is wrong and-establishes a very serious precedent regarding the re- :latianship between a-legislative branch -of government. and -its law :enforcement. agency. " as I. .have indicated to.-you previously ,. if a law enforcement. agency is to function properly and beyond the- politics of a- community. they must .be permitted the .right to-decide. whether. or not there .has been a .violatton of a city ordinance and how to proceed in the matter. The prosecution of a: public nuisance is most difficult because of the problem in proving guelt. Mr. Buckley has told us many times that a nuisance to be considered a public nuisance must affect more than one or two individuals and must be clearly documented. In dis-' cussing this matter with Chief -Kraus and the city attorney it'was agreed that in determining whether or not a person or persons should be cited-under the public nuisance ordinance several things must occur in order that the prosecution is fair and will stand up-in court. They have. both advised~-me they do not need direction from the Common Council to fulfill their legal responsibility, however, what is needed is sufficient evidence to.:warrant t'aking the matter to court. Chief. Kraus has-advised me that-if he received a signed the violation occurred along with any other information-which might complaint by several residents~documenting the time and place-where help him he would as he does in most cases consult with the city attorney prior to the issuance of a summons (or citation) to determine its validity. The Muskego Rendering Company is licensed by the State of Wisconsin that licensing agency the license could be revoked. The City of and it is my feeling that if they fail to meet the requirements of Muskego does not have the power to revoke the license, or in my opinion, to become involved in the compliance of that part of the State Administrative Code under the jurisdiction of the DNR. This view is substantiated by the fact that the DNR has, in fact, become involved in the matter. They have issued an order that the objection- able odors emitted from the rendering facility be controlled to VYisconsin Administrative Code. They have further scheduled a public equal or be below the level of that allowed by N.R. 154.18(1), hearing on the matter. - - . .. As Mr. Buckley has stated, if the Common Council feels they have the power to direct the activities of the police department and his police department and his office to issue citations just to satisfy office there could easily develop the possibility of forcing the individual constituents without regard to due process of law. Or, the or any agency of the city, by resolution, not to issue a citation. reverse could also be true, that is, directing the police department I am sure you will agree these kinds of procedures would bring chaos to our city. include such things as signs, political signs, traffic violations, Dutch Elm disease, disorderly houses, gambling, stagnant water, noxious weeds, adulterated foods, water pollution, air pollution, unburied carcasses, etc. Under Sections 10.02, .03, .04, .05, and .06, public nuisances Chapter 10.07, entitled, Abatement-of Public Nuisances, states, (1) Enforcement. the^ Chief of Police, the Chief of the Fire Depart- ment, the Building Inspector and Health Officer shall enforce those provisions of this chapter that come within the jurisdiction of their offices, and they shall make periodic inspections and inspections upon compl-aint to insure that such provisions are not violated. No action shall be taken under this section to abate a public nuisance unless the officer shall have inspected or caused to be inspected the premises where the nuisance is alleged to exist and have satisfied himself that a nuisance does in fact exist. (2) Summary Abatement. If the inspecting officer shall determine that a public nuisance exists within the"City .and that there.ri.s great and immediate danger to the public health, safety, peace^, morals or decency., the Mayor may direct the proper officer to cause the same to be abated and charge the cost thereof to the owner, occupant or person causing, permitting or maintaining the nuisance, as the case may be. (3) Abatement After Notice; If the inspecting officer shall determine that a public nuisance exists on.private premises .but--that the nature-of such public health, safety, peace, morals or decency, he shall serve nuisance .is not such as to threaten great and immediate danger to the notice on the person causing or maintaining the nuisance to remove the same within 10 days. If such nuisance is not removed within such 10 days, the proper officer shall cause the nuisances to be removed as provided in subsection (2). Because of the nature of the problem I doubt very much that emission of noxious odors falls under the jurisdiction of the Chief of Police, however, more important than that is the question of whether or not tbe Council, by resolution, intends in the future to determine whether or not a nuisance exists and who shall be responsible for its abatement. question of whether or not a public nuisance exists but whether or In summary, .I would like to reiterate once again it is not the not the Common Council, by resolution, can or should impose its will on those agencies hired by them to enforce the laws of the City of bluskego. It is for the above reason that I have chose to veto your action of Resolution $254-77, As Amended. I respectfully ask that you sustain that veto in order that the normal and healthy process of body of this city. law enforcement can continue free of interference from the political JJG/je