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November 19, 2012 | 05:06 PMA Lake Geneva citizens group wants a court order demanding that a memorandum of understanding between the city and Geneva Ridge Joint Venture LLC be made public.
Care for Lake Geneva, a nonprofit citizens organization, hired the Milwaukee law firm of Foley & Lardner to petition the Walworth County Circuit Court for the writ of mandamus ordering City Clerk Michael Hawes to release the document.
City Attorney Dan Draper said the city received a copy of the writ Nov. 15.
He said he is working with an attorney from Foley & Lardner to research whether the memorandum is indeed subject to the state's open documents law.
The memorandum is the final, mediated agreement between Lake Geneva and Robert Hummel, owner of 718 acres of city land near Big Foot Beach State Park.
In October 2009, Hummel, through his development group, Geneva Ridge Joint Venture LLC, filed a complaint against the city in federal court alleging the city was illegally interfering with his development plans.
Dick Malmin, a member of the Care for Lake Geneva board of directors, said the group believes residents should know what is in the memorandum.
Malmin said he suspects that a city decision to redesignate land owned by Hummel from agricultural to residential and commercial uses in the city's master plan was a result of the agreement reached between Hummel and the city.
Publicly, city council members who voted for the amendment to the city's master plan, said the memorandum had no effect on their vote.
In fact, the zoning on the property has not changed.
But Malmin said that zoning can't be separated from the planning document.
The master plan guides how property will be zoned in the future. Changing the designation opened the door for Hummel to request a rezoning.
Malmin said the arrangement would appear to be a case of contract zoning.
Contract zoning involves a secret agreement between a landowner or developer and a municipality on a quid pro quo arrangement. In this case, the landowner dropping a multimillion dollar lawsuit in exchange for a chance to rezone the land.
That, however, has not happened.
In April this year, it was announced that the Hummel property was for sale.
Malmin said he made three requests for the memorandum and was turned down each time.
"Now we've had to hire a large law firm," he said.
Malmin and other members of Care for Lake Geneva have complained that the city attorney and the city council are doing things behind closed doors.
There have been other secret memos that have raised the ire of the Lake Geneva group, including a memo on parking and a memo involving city reimbursement of legal fees for four former and current council members who were deprived of their seats for two months by a former mayor.
According to the brief in support of the writ filed with the Walworth County court by attorney Thomas L. Shriner of Foley & Lardner, after several weeks of court-ordered mediation, in June 2011, Lake Geneva and Geneva Ridge reached an agreement that was entered into a memorandum of understanding.
On Aug. 31, 2012, Care for Lake Geneva Inc. submitted a written request to the respondent for a copy of that memorandum of understanding.
The brief says the group received a reply that the memorandum was not going to be released because the memorandum was deemed confidentiality and that it was protected by attorney-client privilege.
According to Shriner's brief, neither argument is valid under state law and it must be released. Shriner argues that simply stamping something confidential does not ensure confidentiality. A state appeals court ruled that if that were the case, every government document would be stamped confidential, frustrating the state's open documents law.
And not everything transmitted from attorney to client is subject to attorney-client privilege.
Information involving facts or evidence would be exempt, Shriner wrote.
In an interview on Friday, Draper said the legal standing of the document isn't as simple as Shriner lays it out.
The memorandum of understanding between Geneva Ridge Joint Venture LLC and the city was an agreement reached through mediation before a federal magistrate, Draper said. Under the memorandum, neither party is to disclose the agreement without the permission of the other party.
And the agreement was reached between attorneys representing the city and its insurance carrier and attorneys representing Geneva Ridge Joint Venture LLC. The city received the memorandum after the mediation was completed, Draper said.
"It's complicated," he said.
Draper said he is now communicating with an attorney from Foley & Lardner to research whether the memorandum is a government document subject to state open documents requirements.
Draper said releasing the document would "cause me no heartburn," but added he would be worried about precedents set as to what is and what is not a public document.