Alderman Berg's personal commentary on the item, if any, appears in this typeface. Alderman Berg takes sole responsibility for the comments and they might not represent the official policy of the City of Brookfield or the opinions of other individual alderman.

THESE ARE THE MINUTES OF A REGULAR COMMON COUNCIL MEETING OF THE 26TH COMMON COUNCIL, HELD AT 7:45 P.M., TUESDAY, FEBRUARY 1, 2005, IN THE COUNCIL CHAMBERS OF BROOKFIELD CITY HALL, 2000 N. CALHOUN ROAD, BROOKFIELD, WISCONSIN

MAYOR JEFF SPEAKER PRESIDING

ALDERMEN PRESENT: Scott Berg, Thomas Schellinger, Jim Garvens, Richard Brunner, Gary Mahkorn, Steve Ponto, Dan Sutton, Rick Owen, Ron Balzer, Christopher Blackburn, Jim Heinrich, Cindy Kilkenny

ALDERMEN ABSENT & EXCUSED: Beverly Wentz, Mike Franz

ALSO PRESENT: Director of Community Development Dan Ertl, City Attorney Vince Moschella, Director of Administration Dean Marquardt, City Clerk Kris Schmidt, Director of Public Works Tom Grisa, Director of Human Resources Jim Zwerlein, Kevin Beck who was appointed as Director of Information Technology at this meeting

The next Common Council meeting will be scheduled for February 15, 2005.

Director of Public Works Tom Grisa presented a Power Point presentation of the water supply alternatives for the City of Brookfield. (The slides may be viewed in the City Clerk's Office.)

Annotated slides may be viewed here

Two Scouts from Boy Scout Troup 23 from Wisconsin Hills Middle School, led the Common Council in the Pledge of Allegiance to the American Flag.

Alderman Sutton requested Item g be removed from the consent agenda.

Alderman Sutton moved approval of the Consent Agenda, except for Item g. The motion was seconded by Alderman Garvens and carried unanimously except for item f where Alderman Brunner and Alderman Heinrich abstained from voting. Recorded as a roll call.

a) Minutes of the Regular Common Council meeting of January 18, 2005.

b) Approve the actions and recommendations of the Plan Commission as represented in the January 24, 2005. Limited to Item #1.

Item #1 implicitly included approving a public hearing to be held on February 15, 2005 on the proposed new buildings to be located on the southwest corner of the Brookfield Mall property.

Ald. Kilkenny had raised objections to this hearing, claiming that it was incorrectly noticed.  At her blog site entry of January 31, 2005 she wrote "Is it legitimate that the Public Hearing notice is dated (and published) January 21st but the Plan Commission didn’t authorize the public hearing until January 24th? What are the possible consequences of this situation?"  In the February 2, 2005 edition of the Waukesha Freeman, Ald. Kilkenny said, "It [project approval] is being shot out of a rifle.  That is not the way it is supposed to work." 

City Attorney Moschella wrote the following legal opinion to Ald. Kilkenny on February 1, 2005:

"You have asked for a written legal opinion on the following question: “Is it legitimate that the Public Hearing notice is dated (and published) January 21^st but the Plan Commission didn’t authorize the public hearing until January 24th?” [Please note that the notice for the public hearing for the zoning change for CBL at Brookfield Square was dated January 21^st and first appeared in the Brookfield News on January 27^th.]

Section 17.08.070 of the Code requires a public hearing for a zoning code change and it requires that notice be published in accordance with state law. That state law, Section 62.23(7)(d)2., Wisconsin Statutes, requires a Class 2 notice. These sections do not set forth the administrative mechanisms for authorizing publication of that notice. The case of Oliveira v. Milwaukee, 2001 WI 27, states that the only legal requirement is that proper notice be given to the public so that it can appear and be heard on the matter. The manner in which the publication of a notice is authorized by any City is a matter for the internal political, parliamentary, and/or administrative processes of that city. Thus, the fact that the Plan Commission and Council have not formally approved this notice prior to its being sent for publication does not invalidate the notice. The Common Council retains the ultimate right to hold or not hold the public hearing on February 15^th. As with any other matter that is placed on its agenda by staff, it may simply move to table any item that it does not want to take up."

There was no debate on this point at the meeting.  Ald. Kilkenny would have been perfectly within her rights to remove this item from the consent agenda and vote against it on the basis of the hearing "not passing the smell test", but she chose not to.

All of which raises a question: Was this a case of an alderman asking a reasonable question about scheduling public hearings or was this a mayoral candidate manufacturing an issue to get her name in the paper?

c) Approve one Original Bartender's License application. (See Legislative and Licensing Committee agenda for names).

d) Temporary Class B Beer and Wine license for St. Luke Congregation, 18000 W. Greenfield Ave., on February 25, 2005, from 4:30 p.m. – 8:00 p.m., for a fish fry.

e) Original Class B Beer and Class C Wine license for R.S.V. Enterprises, Inc.; d/b/a Nothing But Noodles, 15455 W. Bluemound Rd., Suite 290; Vaishali R. Zala – Agent.

f) Resolution approving the appointment of the Director of Information Technology Kevin Beck. Aldermen Brunner and Heinrich voted to abstain. Resolution No. 7345-05*

Ald. Brunner is a cousin of Mr. Beck and abstained to avoid the appearance of nepotism.

Ald. Heinrich is the CFO for a local construction company and has used Mr. Beck as a computer  consultant.  He believed this could be seen as a conflict of interest and abstained.

g) Removed from the Consent Agenda.

h) No action was taken on the Vouchers exceeding $50,000 requiring immediate action.

(End of Consent Agenda)

Item 4 - Items Removed from the Consent Agenda

Item #g – Alderman Ponto moved approval of the Resolution approving the Harassment Prevention Employment Policy. The motion was seconded by Alderman Brunner and carried unanimously. (Mr. Ponto stated that the Council should be aware that the Harassment Prevention Employment Policy pertained to elected officials as they are also employees. Training for elected officials will occur at a later date.) Resolution No. 7346-05*

Alderman Mahkorn moved adoption of the Ordinance amending Section 15.04.340 B., D., and F. of the Municipal Code regarding Residential Fences. The motion was seconded by Alderman Sutton.

Alderman Ponto moved to amend the ordinance, section (f), to state "Uniformity. If, at a future date, an additional residential property owner chooses to construct a fence in the same fence line, such fence must be the same as any existing fences in that fence line provided such existing fences were constructed in conformance with this ordinance." The motion was seconded by Alderman Kilkenny and carried unanimously.

A roll call vote was taken on the ordinance as amended and carried Ayes 11, Nays 1 with Alderman Heinrich voting nay. Ordinance No. 1997-05*

Ald. Heinrich strongly supports the "Brookfield Concept" which states that the city should have as much open space as possible, including no fences.  Since this change allows more fences, albeit under very specific conditions, he opposed it.

Ald. Berg stated that at the debate that "this is about as far as I can go with fences" and is unlikely to approve any additional extensions to the fence ordinance.

Alderman Mahkorn moved adoption of the Charter Ordinance creating Section 2.36.060 C. of the Municipal Code granting authority to the Common Council regarding the Master Plan. The motion was seconded by Alderman Kilkenny. A roll call vote was taken and carried unanimously. Ordinance No. 1998-05*

Buried in Wisconsin's state budget for 1999-2001 was a provision generally referred to as "smart growth."  It is a sweeping proposal intended to force municipalities to make deliberate and detailed zoning plans.  It stated that by January 1, 2010, all incorporations, annexations, boundary changes, plat approvals, zoning ordinances, or other land use regulation approved by a community must be consistent with its adopted land use plan.  It also stated that the City Council must make the final approval of those changes, not the local Plan Commission.

When the Council approved the city's 2020 Master Plan in late 1999, part of the plan stated that approval of the city's Master Plan would move under Council control in 2007, three years earlier than required by state law.  Thus, Mayor Bloomberg and the Council of 1999 acted to move the master plan authority away from the Mayor and Plan Commission earlier than required by state law. 

In fact, then citizen Scott Berg, cofounder of the Brookfield United Citizens, hosted Director of Community Development Dan Ertl to describe the 2020 Master Plan at a BUC meeting held on November 22, 1999.

In the spring of 2003 (April 15, 2003), the Plan Commission unilaterally changed the Master Plan (technically, a preliminary plat survey) by extending Robinwood Lane to the west to service a proposed subdivision.  That change was overruled by the Council using a technicality specific to that road, but it served as a wake up call on the significance of the Master Plan and the role of aldermen in changing it.  It lead to a change in procedures (April 1, 2003 ) that requires Council approval for that sort of change.

MJS - January 22, 2003 - Brookfield Alderman Don't Have Last Say on Master Plan

On November 16, 2004 Ald. Brunner moved to change the date for moving Master Plan change approvals from the Plan Commission to the Council.  It was referred (tabled) to the Legislative Committee  for comment.  The Legislative Committee met on January 26, 2005 and approved the change.  Ald. Kilkenny is a member of that committee but was absent from that meeting.

The change was adopted at this Council meeting with little comment.

Ald. Berg supports this approval change since he believes that aldermen were elected to represent the residents on significant issues like this one.

There is one oddity to this whole affair.  Ald. Kilkenny has repeatedly stated that it was her efforts that lead to this change, in spite of the long history shown above.  According to her interview in the Brookfield News when she declared her candidacy for Mayor, she believes the Mayor is the "gatekeeper" for development and that she would aggressively scrutinize any proposals, which is interpreted by Ald. Berg to mean that there would be a virtual citywide construction moratorium.  The oddity is that this change, which Ald. Kilkenny assigns herself  nearly exclusive credit for, strips the power to change the Master Plan, the ultimate development restraint tool, away from the Mayor (as Chair of the Plan Commission) and gives it to the Council. 

In Ald. Berg's opinion, there are several possible explanations:

1. Ald. Kilkenny staged a power grab to shift a mayor's duty to her position as an alderman, but didn't think the proposal through and has now shot herself in the foot by making it much more difficult to keep her mayoral campaign pledges, or

2. Mayoral Candidate Kilkenny staged a publicity stunt; its merits were irrelevant as long as it got printed in the papers, or

3. Mayor Kilkenny will now be able to wash her hands of all responsibility for any new development by stating "it was consistent with the master plan and that's the Council's responsibility, not mine."

MJS - January, 2000 - Series on Wisconsin's state law referred to as the Smart Growth Initiative

* May be viewed in the City Clerk’s Office.