Posted: 6/13/06
Discovery ordered in Brownsville junk ordinance case
By David Heiller
Argus News Editor
Third District Judge James Fabian has ordered a 45-day discovery period to determine whether the city of Brownsville is enforcing its own zoning ordinance.
Steve Lee of Brownsville is contending that the city has failed to enforce its zoning ordinance regarding junk.
Lee and his attorney, Skip Wieser, filed a writ of mandamus on May 5 for the City of Brownsville and three individuals. The judge filed an order allowing the writ on May 15, and heard opening statements on June 6.
The writ lists six dates from February 2004 to February of this year in which complaints were made to the city about junk. It also includes photos from different properties.
The city council members listed on the writ are mayor Tim Serres, mayor; and council members Jim Driscoll, Joe Serres, Gary Schulze, and Rick Voshart. (Driscoll resigned from the council in May and has been replaced by Pam Walhovd.)
The three individuals listed are Tim Serres; his wife, Mary; and James Rohrer.
At last weekís scheduling conference, Judge Fabian said he was directing the city to enforce its zoning ordinance. ìIs it something thatís going to resolve itself?î he asked.
ìItís something that has been resolved,î Brownsville city attorney Jed Hammell answered. The city council feels it has nothing to do and that the action required had already been done.
Wieser, who sat with Lee at the front of the courtroom, said there had been some improvement, but that he felt a violation of the city ordinance still existed.
Hammell argued that case law provided the answer as to whether this case needed to go forward. He asked the judge to rule on it and said it should go no further.
Hammell filed a first defense on June 4 that claimed the properties were in compliance and that the city had discretion on whether or not a violation of ordinances has occurred.
Fabian told Hammell that there was room for discretion in the case, but said this case concerned public health, welfare, and safety of the community. For example, there are is an allegation that there are a number of vehicles creating a public nuisance and the zoning ordinance is not being enforced, the judge said.
The court has more discretion in this case than in something like a traffic stop, Fabian said. ìI donít think Iím in a position to do that [rule on the case] today,î he said.
He then set a 45 day ìdiscoveryî period, with 15 days for additional motions. No new court date has been set yet.
The court will address the individuals listed in the case at a later date, Fabian added.
Fabian asked for comment from the city. Tim Serres responded that the city had cleaned up its areas of violation, and vehicles had been moved. ìWeíre not harboring any other vehicles,î he said.
Serres also called the conflict a personal vendetta that goes deeper than the writ. ìHeís trying to make me look bad in many ways,î Serres said of Lee. Lee did not respond to those comments.
Jim Rohrer added that he had removed the vehicles that he was asked to remove. ìThereís nothing on my property thatís unlicensed now,î he said. ììIíve totally complied with what the council asked of me.î
He said he had three ice shacks on his property, but noted that his property is zoned industrial. ìIíve cleaned it up and went a few steps farther,î he said.
Mary Serres, council members Rick Voshart and Pam Walhovd, and city clerk Mike Moriarty also attended the hearing, which lasted 20 minutes.
A unique case
A writ of mandamus is a court order that requires another court, government official, public body, corporation or individual to perform a certain act.
Wieser said on June 8 that the case is somewhat unique, and the writs of mandamus are not common. ìIt is something that doesnít come up very often,î he said.
He said the discovery portion would involve written discussion between the two parties, with the purpose of finding out why the city is or is not enforcing its ordinance.
The discovery period of 45 days is much shorter than the usual timeframe of four to six months, Wieser said. He thinks thatís because the case involves two governmental entities.
If there is no summary judgement or motion to dismiss, the case will have a high priority for a trial date, Wieser added.
Hammell said on June 12 that he and Wieser had already started the discovery process by visiting the sites in question. He said they would now get together and talk with the goal of reaching a resolution. If that doesnít happen, they will take depositions and more photos, and prepare to get the case resolve by summary judgement, Hammell said.
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