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Attorney clarifies Five Diamonds ruling

Attempts to annex complex fall short; options available

Five Diamonds youth baseball and softball complex will remain in the Town of Waukesha after attempts to annex with the city fell short.

Five Diamonds youth baseball and softball complex will remain in the Town of Waukesha after attempts to annex with the city fell short. Photo By Todd Ponath

Dec. 4, 2012

City Attorney Curt Meitz wanted to eliminate any confusion and further clarify the rules.

Audience members, the Common Council and the mayor thought there were enough votes for Five Diamonds, Inc., to get annexed from the Town of Waukesha into the city after Mayor Jeff Scrima broke a 7-7 vote in favor of the annexation at a local council meeting.

Later, however, a local attorney in the audience informed Community Development Director Steve Crandell that, according to state statute, there needs to be two-thirds majority vote for an annexation to happen.

Crandell confirmed this, but by this time the owners and supporters of Five Diamonds had already left the Council Chambers thinking the baseball and softball complex would operate under a different municipality.

So to clear this situation up, Meitz sent out a memorandum to Scrima, City Administrator Ed Henschel, Crandell and City Planner Jennifer Andrews four days after that meeting explaining to them that if a petition for annexation is filed with a Common Council and it accepts the petition, it must do so by a two-thirds vote of the elected members of the governing body.

"A simple majority is not sufficient to accept the petition," Meitz wrote. "If the petition is rejected by a failure of the governing body to accept the petition by two-thirds vote, there is no further action."

In short, Five Diamonds, which sits on 36 acres of land on Les Paul Parkway (Highway 59/164) and Milky Way Road, remains in the Town of Waukesha for now.

Even so, Meitz said there are options available for the Common Council to bring the matter back.

The first, he said, is the subject to reconsideration where someone who voted on the prevailing side brings it back at the next meeting. In this case, the memo says, as the annexation was rejected, a motion for reconsideration can be brought back at the next meeting by one who voted against the annexation. This did not happen.

Another option, the memo states, is that after the time for reconsideration has passed, a motion to rescind is available. It states that a motion to rescind could only be utilized within 120 days after the filing of the petition of the annexation with the city clerk.

And the memo says that if the 120 days expires and no motion to rescind has been made, a petition for annexation could be refiled with the city clerk at any time.

The memo, however, notes that the council would have to suspend its Council Rules in order to act on the matter.

Common Council Rule XIV prohibits a matter that has previously been acted upon being raised until the subsequent third Tuesday in April. A suspension of the rules would require a two-thirds vote of the members present at the meeting.

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