Source: Lake Geneva Regional News

Mirbeau wants judgment or jury trial in suit against city

by Lisa Seiser

May 12, 2011

Just more than a month ago, a flurry of activity began again in the federal lawsuit between Mirbeau of Geneva Lake and the city of Lake Geneva.

Again last week, hundreds more pages of court documents, including some new information, were filed by both sides in support or opposition to summary judgment motions made by the Mirbeau and the city at the end of March.

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.

Those defendants involved in the suit include the city, current aldermen Todd Krause, Arleen Krohn and Frank Marsala and former City Council members Gary Dunham, Mary Jo Fesenmaier, Larry Magee, Tom Spellman, Don Tolar, Bill Chesen and Penny Roehrer.

In the court filings dated May 4, Mirbeau and the city continued to state many of the same arguments they have since the start of the process.

“In this case, there was as clear effort by all members of the City Council to abdicate their legislative decision making responsibilities, not openly discuss their perspectives on the issue and hide behind the results of a sham referendum,” one of Mirbeau’s briefs states.

The document states “at the very least, the facts that have been presented require that Mirbeau’s claims be left for a jury to decide.”

However the defendants in two briefs cite why Mirbeau has no basis for its lawsuit.

“Mirbeau’s persistent obfuscation of the facts speak volumes about the viability of its claims in this case,” states one of the responses.

The city’s responses also cite the elected officials in the case are immune from suit and are not personally liable for equal protection claims.

“Absolute legislative immunity shields elected officials from civil lawsuits for actions taken during the course of their legislative duties,” the brief states. “Importantly, the Supreme Court has held that a legislator’s motive is not an element to be considered even when there might be an improper motive.”

New information

In their two responses to the city’s defendants, there appeared to be new information presented in regard to some city official’s communications regarding the Mirbeau and Hummel development processes.

Mirbeau focused on the Dec. 10, 2007, referendum question and whether officials knew about the question in advance of the decision to send the issue to referendum. The plaintiffs also focused on the city officials’ intent to vote on the development based on the results of the nonbinding referendum.

But, some new e-mail communications reveal what Mirbeau calls a more sinister plot by some aldermen.

In a Dec. 20, 2007 e-mail, Roehrer stated to Friends of Geneva Lake supporters, “We’ll see what time does to Mirbeau/Hummel, hopefully it will wear them down and Hummel will sell.”

Just days later, Roerher communicated with J.B Pritzger, a town of Linn property owner who, according to Mirbeau, was involved with LDD, a corporation interested in purchasing the property. In that e-mail, she wrote, “I’m only glad for the referendum because it gives LDD more time...”

According to Mirbeau’s brief, in an agenda item for FOGL on Jan. 1, 2008, FOGL, Vote No Mirbeau and LDD were three out of four “distinct groups going forward ... and working ... toward April 1,” which was the date of the referendum.

Mirbeau’s filings also question the affidavits of Roehrer, Fesenmaier and Spellman.

“Roehrer’s claim in her affidavit that she was ‘not working with LDD ... to purchase the Hummel property’ is plainly false,” the brief states.

“Fesenmaier and Spellman claim in their affidavits that they were not involved with FOGL. Fesenmaier however, provided information to FOGL activist Sarah Schuster and discussed the Mirbeau project with Schuster on Nov. 14, 2007, and told Shuster that she ‘wants to know more about what’s going on, any news about (Robert Hummel) would be good to spread to her.’”

The brief also states Fesenmaier and Spellman communicated with FOGL members as to their intent to introduce amendments to the Mirbeau plan at the Dec. 10, 2007, council meeting as reflected in the minutes of the FOGL meeting Dec. 9. There were other communications and both aldermen at the time were on FOGL’s regular e-mail list.

The city’s defendants responded to that information and accusations. Defendants contend one of Mirbeau’s “glaring deficiencies” in its case is that it has not “identified any similarly situated developers who were treated differently from Mirbeau.”

“The evidence shows that there existed legitimate concerns justifying the denial of Mirbeau’s rezone and development plan rebutting any claim that Mirbeau was singled out for adverse treatment as a class of one,” the defendant’s brief states.

Mentioned on page 11 of the brief is the Home Depot referendum in which the city used an advisory vote to determine public opinion on the project.

The brief also states there is insufficient evidence to show defendants were “out to get” Mirbeau. It states Roehrer was not a member of the City Council in December 2007 when the referendum was proposed. The brief states Mirbeau fails to present any evidence in support of the allegation that the referendum effort was meant to delay. It also states Fesenmaier, Spellman and Krohn were “not aware of LDD or any other entities that would cater to the financial interests of influential private parties.”

The brief also states, “nor did Fesenmaier, Krohn and Spellman have any association with third parties, including LDD or FOGL with regard to the purchase of the property by another entity. Spellman, Fesenmaier and Krohn were not involved in any of the political or environmental groups including Vote No Mirbeau or Friends of Geneva Lake. Nor did they have any personal knowledge of or involvement with any plans that LDD or its representatives or owners may have had to obtain the Hummel property.”