Waupaca County filed a lawsuit against Dayton town officials, asking a judge to rule that the Little Hope Lake District is “null and void.”
Filed on May 5, the lawsuit names the lake district, the town of Dayton, Town Chairman Chris Klein, Supervisor Glen Newsome, Clerk Judy Suhs and the estate of the late Bruce Golding as defendants.
The suit argues that the town board did not have the legal authority to establish a lake district.
“The only municipal legal entities in the state of Wisconsin with statutory authority to make their own determinations to establish a lake district by direct action are counties,” the suit says.
“Towns have to go through certain steps,” said Jeff Siewert, Waupaca County’s corporation counsel. “The statute specifically says towns have to get a petition from 51 percent of the residents in the proposed lake district and present it to the county.”
According to the county’s suit, 51 percent of the landowners or owners of 51 percent of the land within the proposed district must first file a petition with the town clerk. The petition must then be presented to the county. No such petition was filed with the county.
On whose authority?
“The lake district is not valid, it wasn’t created properly. They didn’t go through the right steps,” Siewert said. “You can’t allow a couple of people to create entities that have the authority to tax people.”
“The town has village powers and I don’t think the county is disputing the fact that the towns have had village powers for over 50 years,” Klein said. “For a town, city or village to set up a lake district, the lake district must be wholly within their borders. The Little Hope Lake District is wholly within the borders of the town of Dayton.”
Klein said the county is contending that Dayton did not follow the procedures for a county to establish a lake district.
“That’s correct,” Klein said. “We followed the procedures for a town to set up a lake district.”
Klein said he spoke with attorneys prior to the town board taking steps to establish a lake district.
“That’s a misreading of the plain language of the statutes,” Klein said, regarding the claim that only counties have the authority to establish lake districts. “Towns, cities and villages all have the authority to set up lake districts.”
The Little Hope Lake District’s primary purpose is to restore the dam.
Owned and maintained by the Waupaca County Parks and Recreation Department, the removal of the dam drained the Little Hope Mill Pond.
Semantics or deception?
The county’s suit also claims that Suhs “knowingly caused a false statement to be inserted” in a document filed with the county register of deeds.
Filed with the county on Nov. 5, 2012, the document indicated the legal dimensions of the lake district.
The document said the Dayton Town Board “approved a petition to establish a public inland lake protection and rehabilitation district” on Sept. 18, 2012.
“Defendant Suhs knew or should have known that the use of the word ‘petition’ in the document she drafted … was false and deceptive,” the county asserts in its suit.
The suit notes that Suhs was the same person who drafted the approved minutes of the Sept. 18, 2012, meeting. Those minutes indicate that the lake district was created by “direct action” of the Dayton Town Board.
Suhs’ actions in recording the document with the county “without legal authority to do so constitute a cloud on the real estate titles of all real estate within the purported Little Hope Lake District.”
“I think we’re wordsmithing synonyms here,” Klein said. “The statute says that the way the town board created the lake district was proper and the statute says the town board does that by resolution. The statute says this under a subheading titled ‘petition.’ If Roger Holman thinks that using the word ‘petition’ is going to invalidate the will of 90 percent of the people who live around the mill pond, I think he’s stretching it.”
Holman is the director of the county Parks and Recreation Department.
“Judy Suhs is one of the most conscientious town clerks in Waupaca County. Everything she has done in my experience has always followed the letter of the law and the intent of the law,” Klein said.
“It’s not just a matter of semantics, it’s intent,” Siewert said. “If you know something is not correct, you can’t file it.”
Golding’s estate named in suit
Among those named in the county’s suit was Bruce Golding, a former town supervisor who died exactly one year before the suit was filed on May 5.
“Generally, when you file an action, you have to name all parties involved,” Siewert said. “It’s a procedural thing to make sure we covered everybody. You can’t sue a deceased person, so you look to their estate.”
“This suit was started by the county six months ago,” Klein said. “They got all the records from the town hall five months ago. Yet, the date they chose to file was the anniversary of Bruce Golding’s death. To chase down and file a summons with his daughter as the guardian of his estate was low and unconscionable.”
The Wisconsin Department of Natural Resources plans to hold a contested hearing on the removal of the Little Hope dam.
The hearing is scheduled for 10:30 a.m. Tuesday, June 3, in the lower level of the Waupaca Area Public Library.
The Little Hope Lake District is asking the DNR to give it possession of the dam.
“If the court says this is not a valid lake district, then why would you give that dam to an entity that is not legal,” Siewert said.