Source: Lake Geneva Regional News

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Mirbeau case moving forward
City defendants ask for dismissals

by Lisa Seiser

April 28, 2011

The federal case between Mirbeau of Geneva Lake and the city of Lake Geneva is heating up again.

Late last month, a flurry of court documents were filed by both sides, including requests for summary judgments on some or all of the claims.

Mirbeau is suing the city for $29 million following 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 on about 55 acres of the property. The lawsuit has been going on since the summer of 2008 and has included claims of unfair treatment, conspiracy to slow down and stop the development and destruction of evidence on the part of city elected officials.

The most recent actions include Mirbeau's request for a partial judgement on the claims of equal protection rights, claiming the defendants "individually and collectively acted unlawfully in conducting an involuntary public referendum" on Mirbeau's zoning application and general development plan.

"The individual defendants illegally abdicated their duties and responsibilities as elected officials and legislative representatives," the March 31 motion for summary judgment states. "Through use of the involuntary public referendum, the defendants intentionally allowed the established rezone review process to be usurped by special interest groups. Mirbeau's zoning amendment application was treated differently from the applications of similarly situated applicants. As a matter of law, there was no rational basis for this difference in treatment."

The filing also cites that the city delayed its effort to rezone the property, the motives and animosity city officials had for Mirbeau and efforts to help another entity purchase the property.

"Mirbeau was singled out for unique treatment," the brief states. "Fifteen out of 16 development projects approved by the city before the Mirbeau zoning amendment application included residential density greater than that proposed by Mirbeau. No prior applicant for development entitlements had ever been subjected to an involuntary referendum." The document cites the Hillmoor development and others.

"The parallels between Hillmoor and the Mirbeau proposal are compelling," the brief states. "Why did Hillmoor get the City Council's approval so easily? City officials, of course, did not have any preferred alternative private developer in mind for Hillmoor. They were not out to get the Hillmoor developer."

While Mirbeau wants an answer to its claims and a date set to determine damages, defendants want Mirbeau's claims dismissed entirely.

Separate motions to dismiss were made by the attorneys representing the two groups of defendants. In one, attorneys for former councils Tom Spellman, Mary Jo Fesenmaier, Penny Roehrer and current Alderwoman Arleen Krohn, stated "Mirbeau cannot establish proof of which would impose liability on Spellman, Roehrer, Krohn or Fesenmaier. The failure of proof on the essential elements of Mirbeau's claims against these defendants makes all other facts immaterial."

The 50-page brief argues that not every action amounts to a constitutional violation.

"Even if this court finds it significant that the zoning ordinances of the city did not direct the use of an advisory referendum or if there may be alleged ethical issues, these types of violations do not rise to the level of a constitutional violation," the document states.

The document also states "Mirbeau cannot show that the city deprived it of property rights by arbitrarily or capricious action or that he city acted irrationally which would shock the conscience."

According to the document, the City Council "had a rational basis for not changing the zoning of this property."

The document also claims Mirbeau cannot establish a conspiracy and that aldermen have legislative immunity against individual claims. The defendants also state there were no open meetings violations and documents were not destroyed.

"Mirbeau's allegations against the individual defendants concern actions taken during and within the scope of their authority as officials of the city of Lake Geneva. The allegations are of legislative activity taken by the individual defendants, specifically their vote to approve a referendum and to deny Mirbeau's rezone request. As such, the individual defendants are entitled to legislative immunity."

Attorneys for defendants Todd Krause, Gary Dunham, Larry Magee, Don Tolar, Bill Chesen and Frank Marsala also filed a 49-page brief supporting the effort to dismiss Mirbeau's claims.

Their brief makes many of the same arguments as those in the brief and summary judgment filed by the other defendants.

"The plaintiff is trying to shoehorn a zoning challenge into a federal lawsuit," the document states. "Mirbeau claims that Lake Geneva did not fairly or legally consider its application for a development permit or a change to the zoning that controls the land it intended to buy. There is no federal issue there; no constitutional deprivation."

The document states "the evidence in this case falls woefully short of supporting any reasonable claim of constitutional deprivation and the time has come to dismiss the plaintiff's claims and to end the ruse."

However, Mirbeau's 31-page brief for the partial summary judgement, stated that before filing its zoning application, Mirbeau "laid the groundwork by meeting with representatives of the city, including the city administrator, the mayor and members of the City Council. These officials expressed support for the project. Mirbeau obtained the assurances of the police and fire departments and director of public works that city services were adequate for its proposed development."

"It is undisputed that Mirbeau's GDP was one of the best, if not the best-supported zoning proposal that city officials had ever seen," the document states. According to the brief, "even the city's planner liked the plan."

"The project very strongly buffers most adjacent land uses, and may be ideal in terms of addressing water quality issues — with a substantial improvement over more dense development and a very substantial improvement over active farming. The low density will ensure that the neighborhood center does not compete directly with the downtown for entertainment or shopping."