Mercer discusses business park ordinance changes
January 22, 2022
By ZACHARY MARANO
MERCER, Wis. — The town of Mercer’s planning commission updated the board of supervisors on their changes to the business park ordinances and covenants at their regular meeting on Thursday.
Planning Commission board member Bob Davis said the commission reviewed the history of the business park and its ordinances and covenants. He said that two key discoveries came out of their research: the business park covenants were vague and not enforced consistently.
Davis said that according to the covenants, the lots in the business park were to be developed into businesses within 24 months of being purchased. However, some of the lots haven’t been developed since being purchased in 2010-2011. Davis said these lots are owned by area residents. He said that violations of the covenants may not be reported to the board because of Mercer’s “small town culture.”
Davis said the commission wanted to hire an attorney from outside the area to review their proposed changes to the ordinances and covenants and confirm that they meet the legal standards and requirements. He said that hiring legal counsel would cost the town as much as $3,000 to $5,000.
Before the planning commission hired an attorney, they wanted to confirm that the board of supervisors was willing to spend that much money. Planning commission chairperson Kathy Tutt said to the board that if they are not willing to enforce the ordinances and covenants, it may not be worth it.
“Thank you for the amount of time spent on this,” supervisor Eric Snow said to Davis and Tutt. “My question is: what does the town benefit from this? The potential of thousands of dollars spent — where does the town come out ahead on it? The idea of concise ordinances is appropriate, but what do we get out of it? The taxpayers are going to spend on it. What do we get back?”
Board chairman John Sendra said he doesn’t think the planning commission needs an attorney, but the board needs to be consistent and disciplined. “We can’t hop, skip and jump through things. We need to be a little more professional, in my opinion,” Sendra said.
Tutt said the planning commission was bringing the decision to allow the commission to hire an attorney as an item for possible action at Thursday’s meeting, but the board agreed to postpone action and put the item on the agenda for their next meeting on Feb. 3.
The board also discussed their agreement with legal counsel Fritz Schellgell. Sendra said that because they are a small town, Schellgell is the only attorney in Mercer. As a result, there could be conflicts of interest between Schellgell representing the town and another client. To prevent these conflicts, Sendra suggested that the town could regularly pay Schellgell to keep him on retainer.
Schellgell said that he does not want to change their agreement and that the town would have to pay a high retainer fee. He said that according to Wisconsin’s standards for professional conduct, there is no conflict of interest in cases involving the town and one of his past clients. However, their definition of “current client” is based on the client’s perceived relationship with the attorney.
Schellgell said that some area residents may incorrectly perceive him to be their attorney. He said that the only way around this would be sending letters saying that he is not their attorney, which he does not want to do.
“Conflicts are going to arise and there are procedures I have to follow. A lot of conflicts are waivable and I would have them waived. Where it really boils down is enforcement. In my 25 years of representing the town of Mercer, I’ve had less than a dozen (conflicts of interest),” Schellgell said.
Schellgell said that the town’s other choice would be hiring another attorney from outside the area. He said that there would be advantages and disadvantages to doing this. While this would prevent some conflicts of interest, the town would probably have to pay more money and not have as good a response time. He also said he has a special relationship with the town as an area resident.
The town board agreed to maintain their current agreement with Schellgell as legal counsel.
The board also:
—Raised the non-sufficient fund fee from $12 to $50. Treasurer Kelly Joustra said that $12 was not enough for all the work required to address the lack of funds.
—Denied a rezoning request from A-1 to RR-1 for a property on Mercer Lake Road. Tutt said that the planning commission circled the wrong property on the map and the property was already in an RR-1 district, so the rezoning request was unnecessary.
—Postponed action on a conditional use permit for a multi-family dwelling in an RR-1 district on Kein Road because the planning commission felt the application was incomplete.