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Geneva Ridge updates lawsuit claims

Complaint cites official's e-mails, depositions

The amended complaint Some claims made by Geneva Ridge - "Between the time Geneva Ridge and Mirbeau entered into the purchase and sale agreement in April 2007, and the time of the final vote of the City Council to deny the zoning map amendment, on April 28, 2008, (Tom) Spellman, (Arleen) Krohn, (Penny) Roehrer and (Mary Jo) Fesenmaier, all vocal opponents of any plan to develop the property, held at least one private meeting at which all four were present, as well as other private meetings on numerous occasions, which involved two or more of these same individuals." - "Fesenmaier, Roehrer, Spellman and others also improperly communicated frequently by e-mail transmission concerning their opposition to any plan for development of the property." n "At a point in time after the referendum procedure was approved, but before the City Council met to vote upon the GDP, certain city defendants, upon information and belief, held a private, ex parte meeting with representatives of Friends of Geneva Lake Inc., a political action group opposed to the proposed development." n "Additional communications, on other occasions, between FOGL members improperly included City Council members, as well as representatives of LDD (Lower Density Development), the entity seeking to purchase the property from Geneva Ridge." n "After the April 28, 2008 City Council meeting, Roehrer, in an e-mail to another member of FOGL wrote: 'I hope that Mirbeau goes away and that LDD can strike a deal to buy the property from Hummel.' In that same e-mail, Roehrer discussed the refusal of Geneva Ridge to sell the property. Roehrer stated that the reason 'Hummel won't let it go' was because the property is 'valuable development land.'" n "Less than 10 hours after the conclusion of the redesignation meeting, at 6:37 a.m., Fesenmaier, in an e-mail communication among Roehrer and Spellman as well as a representative of LDD and four others, inquired, 'If the feds come through with the money for the National Wildlife Refuge, maybe some of the leftover scraps can be used to save the last decent expanse of green space in the city.' In referencing the irony between an already approved development (Hillmoor) and the numerous rejection of development of Geneva Ridge, Fesenmaier stated: 'It's so totally ironic that the density of ... (Hillmoor) ... is much more dense than the contested piece south of town (Geneva Ridge) ever proposed.'"
May 19, 2010 | 09:00 AM
Attorneys believe they now have evidence confirming nine different claims against Lake Geneva officials regarding Geneva Ridge Joint Venture's efforts to develop 718 acres on the southeast side of the city.

Last Thursday afternoon, Geneva Ridge — also known as Hummel — filed in U.S. Eastern District Court their first amended complaint against the city. The 61-page document lists nine claims, explanations and references to information from e-mails between city officials.

The lengthy discovery process for the lawsuit has produced information from e-mails, computer hard drive scans and depositions of city elected officials. Geneva Ridge attorneys did not have some of that information when the initial suit was filed in October 2009.

Geneva Ridge annexed to the city in early 2005 and proposed three different development plans for the property formerly located in Linn Township. None of the plans — including a venture that involved New York-based Mirbeau of Geneva Lake to include a 100-room inn, spa and winery — received final approval from city officials.

Now, Geneva Ridge is claiming the city is in violation of equal protection under federal and state constitutions; retaliation in violation of First Amendment rights; conspiracy to retaliate in violation of First Amendment rights; declaratory judgement voiding denial of zoning amendment; declaratory judgement voiding adoption of comprehensive plan; mandamus, damages, punitive damages and attorney fees under open records laws; violation of open meetings laws; taking under the Wisconsin Constitution and conspiracy to defraud.

Attorney Joe Wirth of Piper and Schmidt, and who is representing some of the defendants in the case, stated in an e-mail that he has not yet had a chance to evaluate the new allegations.

"In my brief review of the amended complaint, I do not see any allegations that cause me to reconsider the defenses that have been propounded to date," Wirth stated.

Wirth has a few weeks before his response to the amended complaint is required.

As of Tuesday afternoon, Mayor Jim Connors did not respond to e-mail questions about the litigation.

In the amended complaint, Geneva Ridge states the referendum and the treatment of the property during the Smart Growth process as violations of equal protection.

Another claim includes citations to then mayor Bill Chesen's suspensions and effort to charge then aldermen Tom Spellman, Mary Jo Fesenmaier, Arleen Krohn and Penny Roehrer for misconduct and open meetings law violations. The claim states that those involved in Friends of Geneva Lake, Vote No Mirbeau, Lower Density Development and other opponents of the development, Fesenmaier, Roehrer, Spellman, Gary Dunham and otehr city defendants and Plan Commissioners planned and agreed to retaliate against Geneva Ridge.

In the open records claim for damages, Geneva Ridge cites not only did city officials fail to produce public documents, information was destroyed. During a deposition, Dunham, a former alderman, testified in March that sometime in May 2008, his computer hard drive failed. Also, according to the complaint, Spellman had e-mails deleted from his computer and Krohn shredded records relating to city business, despite pending public records requests from Mirbeau and Geneva Ridge.

According to the complaint, "Dunham did not save the hard drive. Instead, he took the hard drive out to his driveway and used a sledgehammer to destroy it." At the time, he already had been personally served with the Mirbeau of Geneva Lake notice of injury.

Wirth stated that regarding the e-mails, "it remains our position that the plaintiffs received a fair and reasonable consideration of their land use proposals and it will be up to the court to determine the significance, if any, of the e-mail that may be attributable to council members during the time frame at issue."

Geneva Ridge also contests that those involved engaged in "a planned and concerted effort to devalue the property and hinder Geneva Ridge's ability to develop it through manipulations of the zoning and planning process, to force a sale of the property at a price substantially below fair market value, all for the benefit of others, has effectively rendered the property valueless to Geneva Ridge."

According to the amended complaint, the entire case "arises from unlawful conduct by certain city officials who control the local government." It involves a "systematic and ongoing pattern of intentional unequal treatment of Geneva Ridge Joint Venture from others similarly situated without any rational basis. These city officials individually and collectively have abandoned and ignored legal obligations of their elected offices, as well as the rules, regulations and procedures of their own municipal zoning ordinances.

"These individuals are motivated by an illegitimate objective of intentionally inflicting sufficient economic harm and delay upon Geneva Ridge, to cause it to abandon its plans to develop its properties, convert Geneva Ridge into a seller, force a sale of its properties to a 'more desireable developer' and leave the community."

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