Mirbeau-Hummel files notice of injury against Lake Geneva, city council

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Kayla Bunge
Wednesday, April 9, 2008
— Mirbeau-Hummel representatives have filed a notice of injury against the city, saying the city council violated the developer’s rights by asking voters whether the city should approve the rezone request and general development plan.

Mirbeau-Hummel wants to build a 100-room boutique hotel with 12 villas, a spa, banquet and conference facilities, 57 single-family cottages, a vineyard and winery, a restaurant, retail and 882 homes on 710 acres on the city’s south side.

At least three aldermen—Bill Chesen, Todd Krause and Larry Magee—have said they’ll vote in accordance with the results of the April referendum, in which residents voted 1,377-414 against the proposed development.

“We are not going anywhere,” said Mirbeau-Hummel project executive John Terrell. “We intend on protecting our property and procedural rights.”

According to the notice of injury filed Monday:

-- The city and the city council “breached their ministerial and legislative duty” to act on the rezone request and general development plan by “deferring action pending the result of a referendum, which certain council members promised to treat as binding,” the city and the city council violated city ordinance.

-- Deferring action pending the results of the referendum “deprived Mirbeau of a fair and impartial hearing without due process of law, in violation of the rights guaranteed” by the U.S. Constitution, state constitution and city ordinance.

-- Putting the issue to referendum “constituted an illegal and arbitrary use of the city’s zoning power.”

-- Putting the issue to referendum “violated the rights of Mirbeau to equal protection under the law … (and) caused Mirbeau to be treated differently than others” seeking a rezone.

-- Putting the issue to referendum “constitutes an improper delegation of legislation authority and is an improper exercise of power without reasonable justification in the service of a legitimate legislative, governmental objective.”

-- Putting the issue to referendum with the intent to treat the results as binding and the refusal to take action “has resulted in an improper and illegal regulatory taking by the city and the council … preventing Mirbeau from making full economic use of the property.”

Assistant City Attorney Daniel Draper said the notice of injury provides the city time to evaluate Mirbeau-Hummel’s claim.

“They’ve set up in writing what their claim is, and now we have to sit down and discuss this,” he said.

The statute of limitations for filing a notice of injury is 120 days, but to bring legal action against the city, Mirbeau-Hummel has to file a notice of claim. The city could then deny the claim, which would give Mirbeau-Hummel six months to file a lawsuit.

“Nothing is triggered until they file an actual notice of claim,” Draper said.

Terrell said the developers are merely taking preliminary procedural steps should they need to enter into litigation in the future.

“We hope we never have to go further than this,” he said.

Last updated: 8:59 pm Thursday, December 13, 2012

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