The Vermillion City Council, following the advice of City Attorney Jim McCulloch, voted to add a second initiated measure to the November ballot calling for the construction of a bike path and nature preserve instead of the extension of Crawford Road.
The first measure, filed with the city last spring, calls for voters for decide whether to continue the construction of Crawford Road south over a wooded bluff that is home to one of the city's upscale neighborhoods to provide a link with Burbank Road, which runs east and west on the city's southern border.
Citizens were compelled to circulate a petition to put this issue to a public vote after the Vermillion City Council decided last April to not extend Crawford Road and remove it from the city's comprehensive plan.
Aldermen also removed several alternative transportation options in April for the eastern section of the city.
The residents in the neighborhood that would be affected by connecting Crawford Road to Burbank Road filed initiative petitions last month to counter the initiative that has already been submitted by supporters of the road project.
The first initiative calls on voters to decide whether Crawford Road should be extended. The more recent initiative, if approved by voters, would create a "Crawford Woods Path and Nature Preserve."
McCulloch said much of his research on this topic has focused on a state statute which states that a city council may take no action that would preempt or alter the subject matter of something that's already pending election.
"In doing that research, I was not able to find another situation where you have two initiated measures either at the state level or at the municipal level," McCulloch said. Part of the reason for that, he said, was election scheduling requirements 50 years ago.
Election time frames have changed over the years, he said.
"I did a lot of talking with the South Dakota Attorney General's office, the South Dakota Secretary of State's office, the Municipal League people and attorneys from other cities in South Dakota, and asked them if they've ever encountered anything like this, and none of them have," McCulloch said.
McCulloch added that if the initiative was deemed to consist of the proper subject matter, according to Jeff Hallem of the Attorney General's office, it should be allowed on the ballot.
Hallem's verbal opinion, according to a memo that accompanied the aldermen's agenda's Monday, states that no matter how screwed up two petitions may make things, the second petition should be put on the ballot if it constitutes legislative activity.
McCulloch noted the possibility that each initiated measure could receive a majority vote.
"Then you would have to, either through an election contest proceeding or through a declaratory judgement, ask a court to make its determination of which, if any of the competing measures, should take effect," he said.
"I just find it hard to believe that you can have two items on a ballot where one contradicts the other � if you vote yes for this one, that means no for that one," Hertz told the aldermen. "If we open this can of worms, that means that any petition that gets filed from now on, if you allow this petition to be on the ballot, can be challenged by re-wording another petition."
Hertz has found himself in a role he wasn't expecting � that of spokesman for extension of Crawford Road. Since 2000, he has been developing the Countryside Housing Development on the southwest edge of The Bluffs golf course.
He began his work assured by the city's comprehensive plan that Crawford Road would eventually be available to serve the transportation needs of people living in the housing development.
Hertz said placing the second "Crawford Woods" initiative on the ballot would set a precedent that would affect all publicly funded projects that may face the initiative process.
"If you wanted a new city hall, and the project was on a ballot item, and then someone down the road came up with a new ballot initiative and said this is an alternate to city hall that says you should continue using city hall the way it is," Hertz said, "one could easily do that."
Like McCulloch, Hertz's attorney, Craig Thompson of Vermillion, also called the attorney general's office.
"He, too, was told there is no written opinion on this issue," Hertz said. "If you don't have a written opinion, you really don't have an opinion."
Hertz said Thompson also learned that city councils must accept petitions calling for an initiated public vote if there is no good reason not to. It appears that Thompson disagrees with McCulloch's interpretation of state law.
According to Thompson, state law makes it clear that a municipality has no power to take any action with respect to the subject matter of a pending initiative petition if that action would "alter or preempt the effect of the proposed petition."
The city council placing the "Crawford Woods" initiative on the ballot would do just that to the one filed this spring by Vermillion citizens, Hertz said.
"I think it's time for the city council to stand up and make sure that you do the right thing, because it's not just for the Crawford Road issue � it's for every single issue that's going to be on the ballot in the future."
McCulloch told Hertz that if both issues get a majority yes vote on both issues, the city would not have to do anything.
"So in essence, the people who came up with this second initiative don't want a road or a bike path, and if they (initiatives) both get a yes, they just sit back and hope that nothing happens," Hertz said.
McCulloch told Hertz he could enact an election contest to determine which of the two measures would be enacted.
Mark Wetmore, a supporter of the bike trail and nature preserve, told the council he has no doubt that citizens will be able to distinguish the two initiated measures on the ballot.
"I want to assure you that this is not a harassment on our part for the road that Mr. Hertz wants to develop," said Virginia Johnson, another bike trail and nature preserve proponent. "We really truly believe that this nature preserve and bike path is for Vermillion."
"I think it's very important that we uphold the will of the people of Vermillion," Alderman Mary Edelen said. "They had a petition through the initiative process, and the people of Vermillion have determined on two occasions they would like to vote on these issues even though they are conflicting."
"We have already honored the petition process," Alderman Nathan Adams said, "because there is a petition that is already existing, and we have to honor the integrity of the one that is already existing.
"This one, the way it is worded, is a petition against a petition," he added. "The way that I view it is that everyone right now has an equal opportunity to vote yes or no on the existing petition."
If the second petition were added, Adams said, there could be a combination of outcomes. "There's one way for Crawford Road to win, and many ways for it to lose if both petitions are on the ballot," he said.
Mayor Dan Christopherson and Aldermen Kent Osborne, Ray Hofman and Mary Edelen voted to place the initiative on the ballot. Aldermen Nathan Adams and Jack Powell voted against the measure.
Council members Jere Chapman, Roger Jeck and Kevin Annis were not present.