City of Oak Creek

Common Council Report

Meeting Date:   12/18/07

Item No.:        

Recommendation:  That the Common Council adopt Ordinance No. 2482, an Ordinance to create Section 2.24(f) of the Oak Creek Municipal Code. 

Background:  On January 30, 2006, the City Clerk received a Petition pursuant to Wisconsin’s direct legislation statute, Section 9.20, for a proposed Ordinance which provides:

“Prior to the start of any physical construction of any municipally financed (in whole or in part) project requiring a City capital expenditure of 2 million dollars or more, the Common Council shall submit to the electorate a binding referendum for approval of the project.  Failure of the binding referendum shall preclude the City from proceeding with the project.  The wording of any referendum shall provide the specific purpose, location and cost of the project.  Nothing in this provision shall be construed to preclude the City from exercising its role in the planning or design of such publicly financed projects.”

The City Clerk certified the petition and referred it to the Common Council.  The Common Council took no action with respect to the petition, believing that it was not a valid subject of direct legislation in that it repealed an existing City Ordinance, Section 2.24(a), which provides for the general powers of the Common Council.  The direct legislation petition had been patterned after one approved by the Wisconsin Supreme Court in Mt. Horeb Community Alert v. Village of Mt. Horeb, 263 Wis.2d 544, 665 N.W.2d 229 (2003).  However, the Mt. Horeb decision expressly stated that the Village of Mt. Horeb had not identified any existing ordinances that would be repealed by the ordinance proposed by the direct legislation petition.  Oak Creek Common Council believed that the proposed ordinance impermissibly amended an existing City ordinance.

The Common Council’s decision to take no action was challenged in a lawsuit filed by Oak Creek Citizen’s Action Committee and Mark Verhalen.  The case was assigned to Milwaukee County Circuit Court Judge Richard Sankovitz.  The City filed a motion to dismiss the case because the plaintiffs had not filed a Notice of Claim with the City.  Judge Sankovitz granted the City’s motion and dismissed the lawsuit.  Citizen’s Action and Mark Verhalen appealed that decision.  The Wisconsin Court of Appeals reversed Judge Sankovitz.  The City filed a Petition for Review which has been denied by the Wisconsin Supreme Court and the case is now pending before Judge Sankovitz. 

The proposed Ordinance would resolve the litigation.  The terms of the ordinance have been agreed to by Citizen’s Action Committee, Mark Verhalen and their attorney, Dan Meylink.  The proposed Ordinance provides that prior to starting any capital project to reconstruct, remodel or rebuild City Hall, Fire Station No. 1 or the City Library or to construct an addition to any of those facilities which requires a capital expenditure of 2.5 million dollars or more, the Common Council would be required to conduct a binding referendum.  This includes any proposal to rebuild or renovate those facilities at their present location or build new facilities at another location.  If the proposal was defeated at referendum, the City could not proceed with such a project.  If the proposal was approved, the City could proceed with the project. 

This ordinance is in the form of an ordinance adopted after a direct legislation petition and as such could not be repealed or amended for a period of two years. 

Fiscal Impact:  As stated above.

Prepared by: Lawrence J. Haskin City Attorney	Respectfully submitted, Patrick DeGrave City Administrator
Fiscal Review by: Beverly A. Buretta, CMC City Clerk