When it comes to the Stower Seven Lakes Trail (SSLT) and the debate on the usage of it, nothing in the process has been simple. The latest element in the pursuit to keep the trail nonmotorized is a lawsuit filed Feb. 8 by Peter Henry against Polk County.
Henry is alleging the county board violated numerous portions of the state’s open meeting law when it passed the new master plan for the trail on Oct. 16.
Henry is seeking an order declaring that the County Board violated the Open Meetings Law, voiding the result of the board’s Oct. 16, 2018 meeting as to the amendment of the SSLT draft master plan to allow ATV/UTV use of the trail and legal costs.
On March 20, 2018, the County Board adopted Resolution 28-18. Among other things, the resolution authorized the commencement of a state trail planning process for the SSLT. Resolution 28-18 provided for the creation of a citizen subcommittee of the Environmental Services Committee of the County Board to develop a draft master plan for the trail.
Resolution 28-18 also acknowledged that Polk County must conduct the planning process “in accordance with Natural Resources administrative regulations concerning trail plan development,” and resolved that the process and plan should be “consistent with Chapter NR 44, Wisconsin Adm. Code to the extent practicable.”
Pursuant to Resolution 28-18, a subcommittee was formed and a schedule was established purporting to meet the “public participation” standard of N.R. 44, including a public hearing for purposes of gathering citizen input, an online public survey, and a public open house where the subcommittee’s work would be unveiled.
Starting in June 2018, the subcommittee implemented the schedule it had established and prepared a draft SSLT master plan that recommended uses of the trail continue to be walking, bicycling, cross-country skiing and snowshoeing. Added as allowed uses were snowmobiling and horseback riding. The draft master plan excluded ATV and UTV use of the SSLT.
The subcommittee forwarded its draft SSLT master plan to the Environmental Services Committee in August 2018. The committee on Sept. 5, 2018, discussed and forwarded the draft master plan, without recommendation, to the County Board for its consideration.
On Oct. 16, 2018, the County Board met in regular session. The public notice of the meeting, under Proposed Resolutions and Ordinances, stated, “Resolution 75-18: Resolution Authorizing the Submission of the proposed Master Plan for the SSLT to the Wisconsin Department of Natural Resources.” The text of Resolution 75-18 attached to the meeting notice accepted the SSLT draft master plan and “directed the Polk County Department of Parks, Forestry, Buildings, and Solid Waste to submit the incorporated and attached proposed Master Plan to the WDNR for final approval.”
During the meeting, the SSLT draft master plan was amended to eliminate the prohibition of ATV/UTV use of the trail and to add ATV/UTV use as an allowed use. The SSLT draft master plan was further amended to provide for future development of a parallel, silent-sport only trail, separate from the existing trail but within the SSLT corridor. The possibility of constructing a silent-sport only trail parallel to the existing trail was not discussed in the prior proceedings of the subcommittee and the Environmental Services Committee. It was raised for the first time in the proposed amendment to the SSLT draft master plan.
“The separate silent-sport only trail amendment was offered to camouflage the actual intention of the amendment, which was to eliminate silent-sport use of the existing SSLT and leave silent-sport users with the possibility of a trail that could never be constructed,” states the complaint.
No notice of any kind was given to the public that the County Board would consider amendments to the SSLT draft master plan during its Oct. 16, 2018 meeting. The amendment passed on a 8-7 vote.
The complaint filed by Henry goes on to say the resolution to amend the SSLT draft master plan, offered in bad faith by Supervisor Chris Nelson, and had a level of specificity and legal complexity suggestive of being composed in advance of the meeting. Henry alleges that the resolution was prepared with the assistance of Polk County Corporation Counsel and that notice of the proposed amendment could have been given to the public before the County Board’s consideration of the amendment on Oct. 16, 2018.
The complaint states throughout the process that led to the SSLT Master Plan being considered by the County Board at its Oct. 16, 2018 meeting, proposals to add snowmobile, ATV, and UTV uses as allowed uses on the SSLT were controversial. Members of the public raised concerns about public safety, cost, environmental impact, the compatibility of motorized vehicle use of SSLT with its use by nonmotorized users, and the impact of motorized use on private residences near the trail.
The complaint states the SSLT draft master plan purportedly was developed in compliance with the public participation requirements agreed to by Polk County in an agreement between the county and the WDNR that is commonly referred to as the Memorandum of Understanding (MOU).
Public participation requirements included prior public notice of any proposed changes in uses allowed on the SSLT and an opportunity for members of the public to be heard with respect to proposed changes in allowed uses. The public participation requirements agreed to by Polk County in the MOU were not complied with respect to the amendment to the SSLT Master Plan that changed ATV/UTV use on the SSLT from prohibited to permitted.
In addition to consideration of the SSLT draft master plan, the agenda for the County Board’s Oct. 16, 2018 meeting, included two other controversial items for which there was considerable public interest, a proposal to change the addressing system for properties in Polk County and approval of the draft master plan for the County’s of the Cattail State Trail.
According to the complaint, in order to frustrate public participation at the Oct. 16, 2018, County Board meeting, Polk County decided not to utilize a larger meeting chamber in the same facility despite indications that there would be a large public presence at the County Board meeting.
Henry expresses in the complaint that arriving 10 minutes after the start of Oct. 16, 2018 County Board meeting, he attempted to gain entry to the meeting chambers via three separate doorways and, in each case, was prevented by a mass of people standing, unable to enter themselves.
The Open Meetings Law provides every public notice of a meeting of a governmental body shall set forth the time, date, place and subject matter of the meeting, including that intended for consideration at any contemplated closed session, in such form as is reasonably likely to apprise members of the public and the news media.
Meeting notices should be “as specific and informative as possible.”
The County Board violated the Open Meetings Law at its Oct. 16, 2018 meeting because its notice was not reasonably likely to alert the public that the County Board would consider amending the SSLT draft master plan by adding ATVs/UTVs to the uses allowed on the SSLT and making other changes to the SSLT draft master plan.
The complaint alleges Henry was harmed by the failure of the County Board to provide proper public notice because he was deprived of the right to proper notice mandated by the Open Meetings Law. As to accessibility, the Open Meetings Law states, “All meetings of all state and local governmental bodies shall be publicly held in places reasonably accessible to members of the public and shall be open to all citizens at all times.”
It also alleges Henry was harmed by the failure of the County Board to conduct its Oct. 16, 2018 meeting in a place reasonably accessible to members of the public.