The city of Clintonville and Rose Publications entered into an agreement in which the city agreed to pay Rose Publications $16,500 for repairing an exterior wall.
At a Dec. 9 city council meeting, the council met in closed session to discuss an issue concerning Rose Publications that dealt with litigation that the city may or not become involved in. When the council reconvened in open session, Mayor Judy Magee announced that the council had reached an agreement with Rose Publications. No further details were given.
The Clintonville Tribune-Gazette filed an open records request for a copy of the agreement, as well as all documents regarding the common wall dispute the city was involved in with Rose Publications.
The agreement
According to the agreement, the city owns a parcel of property located on North Main Street which is now a vacant parking lot and a portion of a wall from a removed building which borders the property and building owned by Rose Publications. A portion of the city wall was deteriorating and crumbled into the parking lot in 2012.
Rose Publications claimed that the crumbling city wall caused damage to the structure of its building and filed a claim against the city for $23,500 to repair the outside of its building, the cost of a previous survey, and repair to the interior of the building.
The agreement calls for the city to pay Rose Publications $16,500 to cover the repair costs for the building as well as the cost of the survey of the portion of the property containing the wall.
Also according to the agreement, the “city will now convey a parcel of approximately two (2) feet bordering the property of Rose which will consist of any remaining portion of said standing and remaining wall.”
The agreement also states, “Rose Publications will now take ownership of the portion of wall and adjoin it to their parcel of property and be responsible for its maintenance and liable for its structure from the date of this agreement forward and release the city from any present or future claims resulting from the wall.”
The agreement was signed by city representatives Mayor Judy Magee and Clerk-Treasurer Peggy Johnson, as well as Patricia Rose and Gregory Rose of Rose Publications.
Wall history
In a letter dated Sept. 21, 2012 addressed to the Clintonville mayor and council members, Patricia Rose stated she arrived at her office building on Feb. 6, 2012 and found a portion of the exterior wall had crumbled into the parking lot. The letter also stated that Rose called the city to request having a land survey done on the property where the wall is concerned.
The letter claimed city clerk-treasurer Johnson told Rose she would have to hire someone to do the survey.
Rose also stated in the letter that she had the survey done and submitted to City Administrator Lisa Kotter, the bill for $800 and a copy of the estimate she received to have the repair work done. Rose claimed in the email that Kotter informed her that while researching the wall repair, she found a copy of the deed for the Rose Publications property, as well as a third-party wall agreement from 1927.
Rose stated Kotter informed her, “What this says is that any and all costs are to be split 50-50. What this tells us is that if repairs are to be made we will have to discuss further what is the appropriate means of repair and if you also want this to proceed because you will be responsible for half.”
Rose claimed she had a surveyor and title company research the issue and they came to the conclusion that the wall repair “is not covered under the third-party wall agreement document.
“The portion of wall that crumbled due to lack of maintenance was the exterior wall of the building that no longer stands in the city parking lot. Over time, at the request of former Mayor Gib Johnson, the wall was somehow affixed to the building that I now own. The wall was never turned over to my property, nor does the damaged wall sit on my property.”
There was activity and conversations regarding the wall prior to that letter. On Aug. 29, 2012 Kotter requested the common wall agreement from the Waupaca County Register of Deeds. The common wall agreement, dated March 14, 1927, contains information about building the common wall, and the maintenance of the wall.
The agreement also states, “It is further agreed that the expense of repairing or rebuilding said wall shall be borne equally by the parties hereto, or their heirs and assigns, as to so much and such portion of such wall, their heirs or assigns, shall or may use jointly.”
The agreement also states that “this agreement shall be perpetual and at all times be construed as a covenant running with the land.”
2012 activity
According to past Clintonville City Council meeting minutes, the council first discussed the wall issue in closed session at its Sept. 11, 2012 meeting.
On Sept. 19, Kotter sent an email to Tricia and Greg Rose. Kotter stated in the email that it had been three weeks since she had emailed them the documents that she found when researching the questions regarding the lot of property and the wall on the property. Kotter also stated she was following up because Clintonville City Council President Mike Hankins informed her that the Roses contacted him regarding the wall. In that email, Kotter also informed the Roses that individual council members could not be involved in negotiations unless they are together at a posted council meeting.
On Sept. 24, Kotter sent another email to Tricia and Greg Rose. This email was in response to their letter to the city, dated Sept. 21. The email stated Kotter and city attorney Tim Schmid had reviewed the letter and were willing to discuss the situation further. Kotter stated the city needed to see the survey that Rose had had done. Kotter acknowledged that she was present at a meeting on Aug. 14 when the survey was opened by Rose, but Kotter wasn’t given the chance to view the survey for analysis sake.
Kotter concluded the email by stating that without the additional data the survey would provide, it was unlikely the council would make any recommendation regarding the wall.
Tricia Rose responded to that email the same day. In the email, Rose stated she was willing to work with the city on the issue, and that she did show Kotter the survey. She also stated Kotter could view the survey again, but unless the city was prepared to pay for the cost of the survey, she would not provide the city with a “personal copy.”
Rose also indicated in the email that she didn’t want to have any private meetings with Kotter regarding the issue, “as you and I will just continue to ‘butt heads.'”
Magee got involved that same day, sending a letter to Tricia Rose regarding the wall. In the letter, Magee included information about a meeting that took place Aug. 14, 2012 at city hall about the common wall issue. Magee said those present at the meeting included Tricia Rose, city representatives Lisa Kotter, Okho, and Mandy.
Magee stated in the letter, “I asked Mandy this morning if she saw the survey during this meeting. Her answer, ‘you (Tricia) unfolded the survey, placed it on the table and that the three did not see the map. You quickly folded it up and that was the end of it. You did not give Lisa a chance to look at the survey.”
Magee ended the letter stating that the matter would be referred to Schmid.
According to a memo from Schmid, dated Sept. 26, 2012, he called Rose’s office and cell phone to discuss the issue and left messages for her to call him back. Schmid stated in the memo that he did not receive a call back on Sept. 25.
Greg Rose spoke about the wall issue during the citizens forum portion of the Oct. 9, 2012 city council meeting. The issue was also discussed in closed session later during the meeting.
On Oct. 10, 2012, Schmid sent a letter to Tricia Rose requesting a copy of the survey of the property. He stated the city needed the copy before any further action could take place.
In a letter dated Oct. 19, Greg Rose sent to Hankins and Magee, he was again requesting to meet with city representatives regarding the wall. He stated both Okho and Kotter had viewed the survey, and he was fine arranging another meeting per the council’s request.
Rose also stated in the email that he did not wish to take the city to court regarding the issue, but it was a “last resort option.” He also requested he and Tricia be allowed to talk to the council in closed session.
In addition, he stated that the city administration and council majority have cast Rose Publications in a negative light.
“Tricia and I wish for that to end,” Rose stated in the email.
The next day Kotter sent an email to Magee and Hankins recommending that Schmid get involved again.
Kotter stated in the email, “I don’t think he is going to advise that we all discuss these issues at first phases with a full group. Not how we do anything else and no one else refuses to deal with administration. They constantly change who they decide to respond to. The council’s direction as I recall was two things. One, Tim should handle this. Two, if no copy of survey to get additional info then no more discussions. We might be going against that by dealing with them directly or agreeing to a council meeting.”
On Oct. 21, 2012, Magee responded to Greg Rose’s letter, stating that before a closed session discussion could be scheduled, he needed to get a copy of the survey to Schmid. She told Rose in the email that the council directed everything to go through Schmid regarding the issue.
The next day, Schmid sent a letter to Greg Rose, stating that the city needs a copy of the survey, as the council decided a copy of the survey was necessary before any further action could take place. He also stated the survey was needed so that “the city can determine whether the survey shows the property line; the area of encroachment onto city property, if any; and the location of the party wall in relation to the property line.”
Schmid requested that the survey be sent directly to him if they were indeed trying to work with the city.
On Oct. 23, 2012, Greg Rose responded to Schmid’s letter. Rose questioned Schmid as to why the city needed a copy of the survey ahead of time. He stated because the survey was costly to have done, “it isn’t something that I would want to freely copy and give away.” He also stated if Rose Publications had not paid for the survey, the city would have been required to pay for it.
Schmid drafted a letter the same day to respond to Rose. In the letter, Schmid again explained why the survey was needed. Schmid also reiterated that to resolve the wall issue the city needed a copy of the survey.
“If this is not done, there is nothing further to discuss,” Schmid stated in the letter.
Schmid also questioned the suggestion that Rose was willing to copy the survey at the cost that it cost them to have the survey done.
“Does that mean that you want to sell a copy of the survey to the city for $800?” Schmid asked in the letter. “If so, that offer would be declined.”
2014 activity
The issue of the common wall resurfaced last year when Tricia Rose sent a letter to the city informing it that Rose Publications planned to file an insurance claim against the city. The letter was dated Oct. 29, 2014.
The insurance claim was for $23,530, which included $16,500 to repair the wall, $950 to have two surveys done, $450 in labor costs for pulling the remainder of the wall down, $5,000 in damages, and $630 for painting.
The $16,500 estimate for the wall repair was from Beaver Gunite of Beaver Dam. The estimate was dated Sept. 9, 2014.
Interim City Administrator Chuck Kell filed a notice of claim with the city’s insurance company, Statewide Service, Inc. on Oct. 29, 2014.
On Nov. 4, 2014 Clintonville City Attorney April Dunlavy sent a letter to Rose stating the claim was under review by the city’s insurance company.
Dunlavy also stated in the letter, “Until the city hears from our insurance representatives, who will issue a formal notice, the city cannot authorize any repair work or cost associated with work to repair the wall adjacent to your building.”
She continued, “Any repair done by a private contractor that is done to the wall before authorization from the city will be done at your own expense. Let this letter serve as notice that the city will not authorize any repair work until formal notice is received from our insurance carriers.”
Dunlavy suggested Rose meet with Kell to discuss the wall situation.
Later that day Rose replied to Dunlavy’s letter. She stated the work on the wall began that morning and would be completed the next day. She also requested a time to meet with Dunlavy.
The city’s insurance company responded to the claim on Nov. 20, 2014, stating in a letter to Kell that it did not believe that Formal Notice of Claim was met.
“This issue speaks to the ownership and maintenance of what used to be a common wall which now separates the building from a parking lot owned by the city. Statewide Services will not address the costs noted above, for such involves the maintenance and repair of the wall versus a damage claim on account of any liability on the part of the city.”
Dec. 9 meeting
After meeting in closed session at the Dec. 9, 2014 city council meeting, the council voted 8-0 to approve an agreement with Rose Publications regarding the wall. Aldermen Mark Doornink and Bill Zeinert were absent from that meeting.
When approving the agenda for that meeting, Alderwoman Lois Bressette asked that the issue be discussed in open session. Dunlavy stated it had to be discussed in closed session because it dealt with litigation that the city may or may not be involved in.
Follow-up
The Clintonville Tribune-Gazette contacted Dunlavy for some follow-up information regarding the wall issue. When asked how much of the city’s portion of the wall was still standing, if any, Dunlavy said she wasn’t sure.
When asked if council members had the opportunity to view the survey results before voting, Dunlavy stated the survey was available in closed session at the meeting, but she wasn’t sure how many individual members looked at it.
She said she gave the council her opinion on what action it should take. She chose not to share that opinion, stating it was discussed in closed session.
When asked if Rose Publications made repairs to city property without permission, Dunlavy stated that was difficult to answer. She added that both walls are now tied together and it is one wall.
The Tribune-Gazette asked if the city might have been able to find a less expensive contractor if it had been allowed to put the work out on bid. Dunlavy said the situation could have potentially cost the city more.
When asked if it was alright for citizens to have work done to city property without the city’s permission, she said that is not ok.
Dunlavy added that it was not an ideal situation. She said the city should have addressed the issue immediately when it was first brought to the city’s attention.