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Mayor, others answer Mirbeau claims



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August 11, 2010 | 09:01 AM
The four defendants most recently added to Mirbeau of Geneva Lake's $29 million claim against the city of Lake Geneva have responded to the accusations.

Lake Geneva Mayor Jim Connors, Linn Township resident Richard Malmin, and Lower Density Development and its manager Tom Muenster are asking the court that Mirbeau's complaints against them be dismissed.

In three separate motions filed in U.S. District Court late last week, the defendants cited the statute of limitations has expired, that there is no basis or fact that infers conspiracy or interference, and there are improper procedures and law citations included within the complaint.

In Mirbeau's amended complaint filed in early July, the focus turned to current Alderwoman Mary Jo Fesenmaier, former alderwoman and Friends of Geneva Lake leader Penny Roehrer, Connors, Malmin, Lower Density Development, and Muenster, brother-in-law of lakefront owner and billionaire J.B. Pritzker. That claim is for "tortious interference with a contract."

Mirbeau is suing the city after the failure of their combined development with Geneva Ridge Joint Venture on the 718 acres on the city's south side. The plan included an inn, winery and homes.

Mirbeau, which had a contract in 2008 with Geneva Ridge to purchase 54.5 acres of the property for its development, states that Fesenmaier, Roehrer, Connors, Malmin, Muenster and LDD "intentionally interfered with the Mirbeau purchase contract." The complaint states this effort included trying to drive down the value of the property so LDD could "acquire title at less than market price."

Connors' response motion for dismissal states that Mirbeau's recent decision to join him as a defendant "is nothing more than a strategic move to put pressure on Connors and the city." It also states that Mirbeau "does not allege a single conversation, meeting, correspondence or other form of contact between Connors and the city defendants that could support an inference of conspiracy."

The "plaintiff accuses Connors of doing no more than petitioning his government, a fundamental right that falls outside the reach of state law tortious interference claims," according to the response written on behalf of Connors.

Malmin's response written by his attorney states that Mirbeau "makes no more than a bare allegation of conspiracy and fails to allege any facts which would allow this court to infer (he) conspired with city defendants or any other defendants to deprive plaintiff of equal protection."

In the response from Muenster, who Mirbeau claims is the manager of LDD, the brief states that the plaintiff "must allege the existence of a conspiracy, a purpose of depriving a person or class of persons of equal protection of the laws, an act in furtherance of the alleged conspiracy and injury to a person or property or a deprivation of a right or privilege granted to U.S. citizens."

The "plaintiff must allege some racial or perhaps otherwise class-based invidiously discriminatory animus behind the conspirator's actions" the motion states.

"The fact that these defendant's communications and representations were connected with the political opposition to the plaintiff's development plan dooms the plaintiff's claims," Muenster's filing states.

All three motions cited the statute of limitations.

"Because by clear terms of the second amended complaint, the plaintiff's injury occurred no later than April 23, 2008, so that its cause of action then accrued, it had only until April 21, 2010 to commence litigation against LDD and Mr. Muenster for tortious interference," Muenster's filing states.

The defendants' motions and briefs were written by Thomas Gardiner, a Linn Township resident and Plan Commissioner. Based on e-mails obtained through public records requests, Gardiner also is a member of the Friends of Geneva Lake and was the sender and recipient of many e-mail correspondences regarding the Mirbeau and Hummel development proposals during the past three years.

City of Lake Geneva insurance company attorneys already are defending Fesenmaier and Roehrer, who both were elected officials during the decision-making process on the Mirbeau-Hummel development.

According to Mirbeau's amended complaint, following LDD's offer to purchase the 718 acres for $10 million, a "flurry of behind-the-scenes activity, spearheaded by Roehrer, Muenster, LDD, Fesenmaier, Malmin and Connors.

"These defendants developed, organized, planned and led a multi-front attack on Mirbeau, all designed to delay, disrupt, and interfere with Mirbeau's purchase contract," the amended complaint states.

The complaint states that some of the behind-the-scenes activity is reflected in e-mail transmissions between Malmin, Roehrer, Muenster, Pritzker, Fesenmaier and Connors. Roehrer was "regularly communicating with Fesenmaier in an effort to obtain inside information concerning the City Council's handling of Mirbeau's pending zoning amendment application."

The complaint states LDD made promises and representations to Roehrer, Malmin, Connors, Fesenmaier, other members of the Friends of Geneva Lake and to the public that the development plans for the property would be much more desirable and acceptable than those of Mirbeau and Geneva Ridge.

The complaint also states that Friends of Geneva Lake and LDD's strategy was "to delay a vote on the Mirbeau-Geneva Ridge project for as long as possible, to improperly pressure the duly elected City Council members of abdicate their duties, accept the results of the improper referendum and defeat the zoning amendment application." With that, Mirbeau's purchase contract would expire, preventing Mirbeau from acquiring the land for its project.

In an e-mail Dec. 20, 2007, between Roehrer, Muenster, Pritzker and other FOGL members, "We'll see what time does to Mirbeau/Hummel, hopefully it will wear them down and Hummel will sell."

On March 4, 2009, after the Mirbeau zoning amendment application was defeated and after the purchase contract expired, Muenster sent an e-mail to Roehrer and attorney David Williams stating, "I would like your opinion on LDD's exposure to tortious interference."

Geneva Ridge and Mirbeau teamed together in an effort to develop 718 acres of land near Big Foot Beach State Park. After the effort with Mirbeau failed, Geneva Ridge, better known as Hummel, went on their own in an effort to develop the property. That also failed.

In general, both Mirbeau and Hummel are alleging among other things, "unlawful conduct by certain city officials who control the local government." It involves a "systematic and ongoing pattern of intentional unequal treatment ... 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."

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