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Muskego lake park issue stays afloat

Feb. 28, 2012

Muskego - A showdown between the Muskego Common Council and residents who petitioned to stop the development of a controversial lake park plan didn't happen last week.

A special meeting on Feb. 22 simply resulted in more public input and a deferral on a decision to this week. Instead, the impending resignation of an alderman who has supported a proposal for Little Muskego Lake was the only new development as of Tuesday.

Alderman Noah Fiedler, who will officially step down March 31, is one of four aldermen who voted for the park on the seven-person Common Council.

His resignation, however, might not shift the balance on the Common Council on the park issue, for which a land acquisition proposal passed on a narrow 4-3 vote in late January. Mayor Kathy Chiaverotti, who has openly expressed support for the project, would cast a tie-breaking vote on any issue that is deadlocked.

A referendum in question

The Common Council was slated to vote Tuesday on a direct legislation petition aimed at stopping the purchase for the proposed park until a binding referendum can be held. Chances of the council approving the direct legislation are considered unlikely, given the firm 4-3 balance over the park issue.

The council also was expected to vote down a binding referendum. However, the council could approve an advisory referendum on Tuesday that has the potential of eventually swinging a vote against going ahead with buying the properties.

But before Tuesday's meeting, Lorie Oliver, organizer of the direct legislation petition drive, said an advisory referendum would be no good.

"A nonbinding referendum is no different than us getting out the petition and them ignoring it," she said.

Legal roadblock?

The direct legislation petition was signed by 3,409 Muskego residents who didn't want the city to go ahead with buying two homes for $3.6 million for the proposed lakefront park without a referendum. While some were against the park, many felt that cost estimates were not nailed down enough or that the price for the two properties is too high.

But Eric Larson, Muskego city attorney, advised the Common Council to set aside the direct legislation resolution, saying its subject was improper for direct legislation. In his opinion, it's administrative, not legislative, and the courts have supported direct legislation only if it's legislative, Larson said.

And the Wisconsin Supreme Court offered a way to tell the difference.

It hinges on whether the proposition would make new law or execute law or a resolution already in existence, the Supreme Court ruled in a case involving Wauwatosa. Something is administrative if it "merely pursues a plan already adopted by the legislative body," the court wrote in its decision and which Larson noted in his opinion to the council.

And beyond being administrative, in his opinion, the direct legislation resolution, by requiring a binding referendum, would in effect repeal the council's original decision to buy the land, he wrote. That too makes it an improper subject for direct legislation, he wrote.

The state Supreme Court concluded that direct legislation must not repeal already-approved resolutions, Larson said. That was its conclusion in a case involving the Wisconsin Dells, he noted.

Regardless of the finer legal points, Oliver said, "We hoped they would honor the fact that 3,400 people are against their decision. That's a lot of people."

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