MADELINE ISLAND NEWS AND INFORMATION

Town Board / Town Plan Commission Meeting 03-20-08

TOWN BOARD/PLAN COMMISSION MEETS WITH ATTORNEY

"When In Doubt, Disclose" --Michael Fauerbach on public information requests.

Posted:  March 21, 2008

Updated:  March 23, 2008

The Town Board met with the Town Plan Commission Thursday, evening, March 20th, specifically to to discuss roles and responsibilities of the Zoning Administrator.  Greg Nelson, Town Chair called this meeting to after receiving complaints and resignation threats from members of the TPC.

Town of La Pointe Attorney, Michael Fauerbach attended this meeting to help answer legal questions about responsibilities and public information requests.  Nelson called in Fauerbach for his experience working with zoning, Town Plan Commissions, and zoning appeals issues in many areas around Northern Wisconsin.

All members of the Town Board were present as were all Town Plan Commissioners with the exception of Ric Gilman and Carl Broberg left about 45 minutes into the meeting.  Zoning Administrator Jennifer Croonborg was also present.

One of the purposes of this meeting was to try and define, for everyone concerned, what exactly where the responsibilities of the Town Plan Commission and the Zoning Administrator, with Fauerbach present for any clarifications as La Pointe Zoning Ordinances and TPC By-Laws states some specifics.  Apparently there has been a great deal of confusion among Town Plan Commissioners as to whom is responsible for what.

For instance, the job description of the Town Plan Commission recording secretary lists notice posting as one of the duties, however, Town Plan Commission By-laws state that the Chairperson is responsible.  (Click here to see the Town Plan Commission By-Laws.)

Fauerbach mentions that zoning related posting in other towns is usually handled by the Zoning Administrator as most citizen board members aren't familiar with the legal posting requirements.

A discussion about Public Information Requests revealed that the Zoning Administrator was the custodian of records as it is listed in the job description of the ZA.

Town Plan Commissioner Lois Carlson inquired about 'private' memos between the Commissioners and the ZA as she perceived that some of the information that was being circulated was taken out of context and stated she didn't understand how 'private' memos could be used against the town.

Fauerbach replied that if it is a memo for more than one person's use, there is no such thing as a 'private' memo under the open records law, it just doesn't exist.  Wisconsin has very open government laws and you have to abide by them.   I've learned over the years representing various municipalities on things other than zoning, that if in doubt, disclose, that is best way to do it."

He went on to talk about situations he has seen where someone made a records request and didn't get what they wanted or a town went into closed session about some matter, and then got sued over it.  He said that in most cases, the court sides with the towns about the decision to go into closed session, but if there's found to be to a violation meetings or records laws, the towns lose.  That's why he says to say, "Here it all is.  Take it." 

He went on to concur with Town Board member Jim Patterson that this means that  memos, drafts, and 'working papers' can be part of the "public record".  He also mentioned that he had a chance to read Matt Antich's (Town Attorney) letter to ZA, Jennifer Croonborg about this matter and that he agrees 100% with him and that his opinion was not subject to dispute.  (Click here to read Matt Attorney's letter.)

He says that when he gives his opinion to the town he will say whether it is a close case or not.  "This is not a close issue", he said.

He went on to explain that law suites are not just limited to the town, but individual members in town government.  If found in violation of open records laws, doesn't necessarily mean  that you would get fined, especially if you were acting in good faith or on the advice of an attorney, but that doesn't mean that the town wouldn't get stuck paying the other sides attorney's fees because there is a strong policy in favor of open records law.

The practice of 'affidavits of publications' were also discussed as a means of proof that meeting notices were posted and Fauerbach thought that it was a good thing to do, but Fauerbach was unsure about the legal requirements. 

Discretionary and administrative tasks were discussed and he recommended that all types of administrative tasks (postings, mailings, etc., ) be handled by the Zoning Administrator, as they are in most other towns, because most of those need to be done per ordinances and laws.

Croonborg also asked about how to correct some of the problems that she perceives and Fauerbach replied that he didn't have a good answer to that as he said that La Pointe's situation is unique as most towns choose not to handle their own zoning.  However, citing examples of other communities who have good working systems, it was his observation that it usually was a matter of trust between the committees and the administrator.  Application and interpretation of law is also involved, but good administrators should remain objective.  In many cases it is clear what the law is, but in other cases, if it is a judgment call that the TPC needs to make, she should let them make it.

A discussion followed about utilizing some of the hours of the TPC Recording Secretary that have been allotted to the Zoning Administrator.

Fauerbach also brought up his concern for the town of La Pointe having many law suites over the years as it can affect the town's ability to get insurance, mentioning that this has been brought up to him by some of the adjusters he has worked with on other cases involving the town.  Even though he said it would be in his own best financial interest, but his job is to make sure that the town and any municipal employee didn't get sued and if they did, there wouldn't be a case. 

Town Chair, Greg Nelson addressed a problem that he perceived with communication and interaction with people in town government with corporate experience based on letters that he had received from TPC members.  He said that he doesn't see the Town Board above the TPC, or the ZA, and that he considered everybody on the same level with their roles and responsibilities.  A few weeks ago, he had solicited written comments from Town Plan Commissioners requesting their thoughts on the roles and responsibilities of the Town Plan Commission and Zoning Administrator to help facilitate this meeting.  Only four members wrote responses to Nelson's request. 

Town Board member Jim Patterson said that after reading the letters that Nelson received, that he was very disappointed that in many cases, there didn't seem to be a great deal of respectful for the ZA, citing one of the more extreme examples, "...she should sit there and speak when spoken to."  

He said that he realizes that this is an attitude issue which is can't be put in job descriptions and said that Fauerbach had mentioned  "respect" several times.  "These are the components that make the zoning work here and if we can't have respect going back and forth, we're going to have a dysfunctional situation." he added. 

Lois Carlson interrupted saying "It's got to work both ways.  I don't think anybody has disrespected Jenn."  She went on to say  "there's a whole two way street going and it's not just one side; it's unfair but that's how the whole junk yard thing got started with that kind of attitude and that kind of speech."

She went on to complain that she felt they had "been hung out to dry by the Town Board, accosted by town members and nobody has backed them up.  I don't think I'm the only one on the Commission that feels that way."

Greg Nelson interjected asking how she thought he felt when he saw a petition that was seven months old with 50 signatures on it?" and a heated discussion followed.   Jim Patterson brought the discussion to a close making a point, "This is very tough.  What you do is tough.  What we do is tough. We're talking about decisions that affect peoples lives. We all know that.  But, the thing is you can't take it personally. You got to do the best job you can and people are going to throw rocks at you and six months from now, we're going to be wondering what the hell we were complaining about. You can't talk it too personally."

Greg Nelson spoke about "Roles and Responsibilities" on the agenda saying he was informed by Barb (Christiansen) there's four people who are going to quit if this is not addressed."   He went on to say that he asked for these comments in writing because if he sat at this meeting, and listened to everybody say how they felt and then tried to relay it to the board, and try and figure out the best way to do the roles and responsibilities, he wanted them in writing so that they could be addressed, but not at this necessarily at this meeting.  He said this meeting was to try and hammer out the legal issues.

Beth Fischolowitz spoke about what it means about 'coming from a corporate background' saying that she thinks that the town is lacking the policies and procedures that you find in corporations.   Policies are not clear cut, internal housekeeping policies aren't in place that allow for a constructive process, and that these steps are not in place to handle grievances. 

"It seems to me in a small town where we are all in bed with each other, figuratively or literally, that have some more well defined communications steps in our process would go a long way", she said and asked Fauerbach on his opinion on how grievances are handled in other towns.

Fauerbach responded that he didn't have much expertise in that field..  He said the town has a grievance procedure in place, but didn't think that was the way to go in this particular situation. A discussion followed about having "working sessions" to addresses some of these issues and define procedures. 

Croonborg brought up that in the past, when she had done a lot of research on issues, it seemed like nobody bothered to read what she had written.  However, she said that at the last TPC meeting, she felt that Commissioners had taken the time to read what she wrote.  Even though they disagreed with her recommendations, she was happy that they had taken the time to read them.  Nelson and Patterson said they also attended the meeting and were impressed with the way things were handled.

Town Board member Ham Ross spoke about have an feeling of "impending doom and the wheels are falling off as they did two years ago" and stated he really wanted everyone to resolve their issues and not get the town board increasingly involved in your business because they were appointed and hired for a specific job, adding that even though zoning had been simpler in the past, that it worked very well. "This is a terrible and messy conflict that I wish would just stop,"  he added.

Croonborg also commented that if she did have the administrative duties as part of her scope, she would be relieved of a lot of stress from her job.

Fischolowitz took the meeting in a different direction by asking Fauerbach if it was possible to change your vote on an issue after it has been recorded.  Fauerbach responded that his recollection was if you used Robert's Rules of Order" you could ask someone who had voted for it to ask for its consideration.

Patterson pointed out that there has been a lot of changes in zoning over the last two years and that fact itself is part of the problems with Nelson adding that there has been a lot of increases in permit applications and the demand for permits is as high as it has ever been.

Mike Starck said that from his viewpoint, everything seemed to be going great as they have not had to address any problematic applications, with Greg Nelson commenting about how well the relationship with the Town Board is going, especially with the ZA's complete and informative reports, that there is no comparison with her predecessor.

A discussion followed about a letter from" Waggie" about what the Town Board wished to post about the upcoming open positions on the Town Plan Commission that expire on April 30th.  Town Plan Commissioner Barbara Christiansen brought up the possibility that two members from the TPC could be elected to the Town Board, making a total of three Town Board members on the TPC.

This would put the Town in a unique position about a couple of pending CUP decisions as the Town Boad is the Board of Appeals for all CUPs.  If TPC members were elected, that would put them in the position of being three of five as the 'Board of Appeals' on issues that they had already voted on.  This would make the current CUPs that are currently in the 30 day waiting period in effect, "un-appealable".  Fauerbach said that he didn't have a good answer and this was a very good question to a possible real situation. 

Ham injected with the only good answer being "Vote for Ham!".

Fauerbach said an alternative would be let the Zoning Board of Appeals act, but that isn't provided for in the ordinance.  Nelson said that before the ordinance was changed, the aggrieved could make appeals to the Zoning Board of Appeals, but that was found to be illegal as the Town Board would make a decision after the Board of Appeals.  This left the aggrieved no alternative but have to go to circuit court to appeal the decision.   However, they changed the wording in ordinances so that the Town Board would make the ultimate decisions.  He went on to say he found it was odd that the Town Board's decisions could be appealed, because in most cases, the Town Board would make changes to the recommendations of the TPC.

Fauerbach responded that he was sending a letter to the ZA addressing the legal process for CUPs and the law is very specific.  He said that there were two functions.  One was the appeal process where the town board considers an appeal of the TPC recommendation and the other where the Town Board actually makes the final recommendation and changes or adds conditions.

Starck brought up the fact that there is nothing in state statutes that prevent three Town Plan Commissioner from sitting on the Town Board.   Fauerbach replied that as far as he knows, the La Pointe situation is unique.

Town Board member Gary Flores asked that since Mike (Starck) is on the TPC, that when an issue comes up in front of the Town Board, if he should abstain on it.  Fauerbach replied, "That would be a good way to do it.  If it were an issue where the Town Board was going to act as an appellate body, then yes."  Starck then points out that if there are three people from the TPC on the Town Board, then the Town Board couldn't function.

Discussion continued about the 2 CUPs that are currently in the 30 day period.  Fauerbach didn't have any solutions in the short term but recommended possible ordinance changes as a long term solution.

Croonborg added that she was happy about the outcome of the meeting and that some of the feelings were expressed.

The meeting adjourned around 6:30pm.  

(Click here to listen to audio recordings of the meeting.)

(Click here to read Croonborg's letter to Christiansen concerning late CUP notice)

(Click here to read the letter submitted by Barbara Christiansen)

(Click here to read the letter submitted by Beth Fischlowitz)

(Click here to read the letter submitted by Lois Carlson)

(Click here to read the letter submitted by Sue Ellen Soucek)

(Click here to read Croonborg's response to the TPC concerning their letters.)

(Click here to read the job desciption of the Zoning Administrator.)

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