Judge’s ruling clears the way? Chestnut election appears likely

Judge's ruling clears the way? Chestnut election appears likely by David Lias A circuit court judge has determined that the citizens of Vermillion – not the Vermillion City Council – ultimately have the last word on whether to proceed with the Chestnut Street improvement project.

Following a hearing Feb. 5 in the Clay County Courthouse in Vermillion, Judge Glen Eng of Yankton ruled from the bench that the city council's December 2000 decision to proceed with the street project was legislative in nature, and therefore is subject to the referendum process.

That means Vermillion voters likely will decide the fate of the street project � which had an estimated cost of $1.3 million when it was first proposed three years ago � when they go to the polls for the municipal election in April.

"Isn't it wonderful?" said Lynette Melby of Eng's decision last week. "This is such a breath of fresh air for the taxpayers and the citizens of Vermillion."

Melby, her husband, Neil, and her sister, Jeanette Stone, were petitioners in last week's court action. The city of Vermillion and members of the city council were respondents.

"The petitioners were claiming that the Dec. 4, 2000 action was legislative and therefore referable," said City Attorney James McCulloch. "The respondents were claiming that it was administrative and not referable."

The respondents also claimed that due to the delay in the petitioners bringing the action, and then once brought, litigating the action, that they were either stopped from proceeding on that basis or they waived it, or that the delay barred any relief, McCulloch said.

Mayor Roger Kozak said the city council will decide whether to appeal the judge's ruling or schedule a public election at its next meeting Feb. 18.

He believes city leaders will favor an election over taking the issue to court.

"There's no doubt about his (Eng's) judgement, which is that he thinks that we should refer this to the public," Kozak said. "And he agreed that things are really kind of backwards. We've had a vote on the condemnation by the public, and most people who were voting on that were, in the back of their minds, saying, 'I'm voting for or against the project,' which was not the case, but mentally, people were thinking that."

The homes of the Melbys and Stone are located on a bluff that borders Chestnut Street. To widen the street, the city needs to obtain some of their property.

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Property owners and other citizens have repeatedly voiced concerns about the project's cost, traffic numbers, safety, lighting and the project's possible impact on the environment.

There also are a fair number of citizens who support the proposed improvements, judging by their comments at public meetings and the outcome of an election last November.

Community leaders, in their successful campaign in support of allowing the needed property to be condemned to allow the street project to proceed, noted that the improvement is needed to compliment Burbank Road, Broadway Street, the Dawson Bridge, and the general flow of traffic between east and west Vermillion.

"What really broke our hearts is that Mayor Kozak would choose to use taxpayers' dollars, thousands of them, to try and keep the voters from being able to vote, and that's the sad part here," Melby said.

She added that Kozak was impeached on the witnessed stand during the Feb. 5 hearing. Tapes of public meetings and news articles that have appeared in the Plain Talk about Chestnut Street were presented.

"They impeached his testimony," Melby said. "He has put forth a series of untruths about this, the latest one being that in the last condemnation election, in all of his advertising and his public meetings, he made a very big deal that we were the only three landowners who hadn't given the city easements."

That is untrue, she said, noting that the railroad and state of South Dakota haven't given easements to the city.

Melby said the petitioners in last week's court action were expecting at least a three month wait before learning the judge's decision.

"When this trial finished, the judge said the evidence was so compelling that he didn't have to take that time � it was so clear cut," Melby said. "You really hardly get a ruling from the bench, and that's what we got that day."

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