Citizens sue to return Hummel property to ag on land-use plan
By Vicky Wedig
Editor
A Lake Geneva citizens’ group claims the city secretly agreed to change the land-use designation on the Hummel property as part of a legal settlement with the landowners.
The group, Care for Lake Geneva, filed a civil suit against the city in Walworth County Circuit Court in May alleging the city conducted “contract zoning” with Geneva Ridge Joint Venture, the developers of the Hummel property.
The Hummel property – 710 acres along Big Foot Beach from the Highway 120 bypass to South Lake Shore Drive – was the subject of a lawsuit that dragged on from 2008 to 2011. Geneva Ridge Joint Venture and Mirbeau of Lake Geneva proposed a development there in 2007 that included the Mirbeau Retreat – an inn, villas, spa, fine dining and banquet facilities; a winery; retail stores; and 882 residential units.
At that time, Care for Lake Geneva opposed the development and successfully lobbied the city to have an advisory referendum, said group member Dick Malmin, who lives across from the Hummel property.
“Seventy-seven percent of voters said they didn’t want the development, so the City Council voted against it,” he said.
Geneva Ridge Joint Venture and Mirbeau of Lake Geneva then filed a lawsuit against the city alleging the city and its aldermen violated the companies’ due process and equal protection rights by denying its request for a zoning change.
In late 2011, the city settled the lawsuit with Geneva Ridge for $2.1 million and with Mirbeau for $1.75 million.
Land-use change
In the process of the settlement agreement, Care for Lake Geneva believes, the city gave the Hummel property a zoning change on its land-use plan, Malmin said.
“A week before they dropped the lawsuit, the city changed the zoning,” he said. “It’s pretty obvious, maybe circumstantial, but I think it’s pretty obvious what they had done.”
Malmin said the property had been designated agriculture, but as part of the city’s agreement with Geneva Ridge, it changed the zoning to mixed neighborhood in exchange for the company dropping its lawsuit.
“That’s called contract zoning,” he said.
However, he said, the city never admitted to the agreement, which was private, confidential and negotiated in closed meetings.
Care for Lake Geneva sued the city in August 2012 to release details of “the secret deal” it cut with Geneva Ridge. As a result of that lawsuit, in December the city released a memorandum of understanding with Geneva Ridge that outlines its agreement with the developers of the Hummel property.
“The whole idea of getting that information was because it would reveal that there was contract zoning,” Malmin said.
Care for Lake Geneva argues the memorandum of understanding shows the city entered into contract zoning with Geneva Ridge and is asking the city to change back any ordinance or zoning changes that were made as a result of the agreement.
“That’s all we’re asking for – to do it right,” Malmin said. “They did it surreptitiously. They didn’t tell the community what they were doing.”
More secrets alleged
Malmin said Care for Lake Geneva believes additional documentation exists that the city has not yet revealed that shows further evidence of contract zoning.
“We know there’s another document that they have secreted away, and we believe on the memo of understanding that that on its face is contract zoning,” he said. “The city says they had no quid pro quo with the developer – there was no document that said if Hummel dropped the lawsuit, they would give them the zoning change. We believe there is such a document.”
Malmin said that document might never have been printed but he believes exists on a computer somewhere, and the latest litigation aims to expose it.
“We’re pursuing that document,” he said.
Property owner Bob Hummell said he does not recall whether changing the parcel’s designation on the land-use map was part of his company’s settlement agreement with the city.
“I honestly don’t even remember,” he said.
Designations on the land-use map represent the city’s plans for an area but do not reflect actual zoning for a specific property. The developer would still need to appeal to the city to change the property’s actual zoning designation.
Hummel said his group has no plan to request a zoning change and is using the property for farmland.
“We don’t have any plans for it,” he said. “We’re going to sit there and let the pot boil.”
Hummel referred further questions about the settlement agreement to Elkhorn attorney Bob Leibsle, who did not return phone calls.
Planning vs. zoning
Hummel said when he bought the land and proposed the development, the city’s master plan called for a density of about five to seven dwelling units per acre and the density of his plan was well below that.
According to the Mirbeau-Hummel Development plan from 2007, the city’s 2004 South Neighborhood Plan designated the use for the area as “traditional and planned neighborhoods” with a density of 5.5 to 7.5 dwelling units per developable acre. The Mirbeau-Hummel plan called for a density of 1.48 dwelling units per developable acre, according to the plan.
Malmin said the area was originally designated agriculture, but the city changed the plan to “traditional and planned neighborhoods” in 2004 without public input. After the city denied the zoning request for the Mirbeau-Hummel development, it changed the master plan back to designate the area as agriculture for the next 20 years, he said. As part of its settlement agreement with Geneva Ridge, it changed the plan back to mixed use, Malmin said.
Attorney Joseph Wirth, who is representing the city in the litigation, said the city entered no binding agreement with Geneva Ridge to re-zone the Hummel property.
“The allegations are that the memorandum of understanding mandated certain things, which by its very terms, didn’t,” he said. “What the plaintiffs are attempting to portray is that in some fashion … there was some binding agreement.”
Wirth said the memo of understanding is not a contract to change the property’s zoning, which probably hasn’t been done in decades. He said the memo contains language that specifically says it does not bind the city to take any action.
Wirth said the memorandum of understanding was the product of court-ordered mediation that resulted from the litigation against the city and says the “city and Geneva Ridge will cooperate to expedite the application.”
The application was Geneva Ridge’s request to return the designation on the city’s master plan to the use that was designated at the time of the Mirbeau-Hummel proposal. He said in the memorandum of understanding, the city agreed to consider the request and ultimately changed the designation, but not to the exact use Geneva Ridge requested.
“From the city’s perspective, there’s no merit to the claim here,” he said.
