The city of Franklin and the Milwaukee Metropolitan Sewerage District are continuing to push for the dismissal of a lawsuit over a sewer project despite the list of plaintiffs expanding from one to 206.
Franklin resident Ronald Fratrick sued the MMSD and its sewerage commission in February, claiming he is being illegally taxed to pay for the Ryan Creek interceptor sewer. In May, Fratrick amended his complaint to include 205 more Franklin property owners who, like him, have septic systems and claim they have no intention of connecting to the sewer and therefore should not be taxed to pay for it.
Franklin in 2012 used a $25.7 million state loan to build the 5-mile interceptor sewer, which connects mains under South 124th Street to mains under Ryan Road and South 60th Street. The city and the MMSD had agreed in 2010 that the district would buy the sewer from the city with the condition that the district be allowed to consider expanding its taxation in Franklin to include all property owners.
In his original complaint, Fratrick listed Franklin as an involuntary plaintiff, meaning the city was included in the lawsuit but not considered among the 206 because Franklin was not part of drafting the complaint against the MMSD and sewerage commission. The city, in its responses, has sought dismissal of Fratrick’s complaint or, failing to do that, a finding that the MMSD still must pay for the sewer.
On June 2, Franklin amended its response to include all 206 plaintiffs and maintained its request for dismissal. The MMSD on Wednesday did the same.
Official motions for dismissal are due by mid-July, according to a preliminary court schedule. A hearing is scheduled for Oct. 21.
Attorneys for the MMSD and Franklin did not immediately respond to requests for comment Friday.
According to the MMSD’s latest response, the court should not entertain complaints from any of the new plaintiffs who have not filed notices of claim with the district. The MMSD also contends Franklin consented to the district’s expanded taxation, so the lawsuit is invalid.
But Catherine La Fleur, an attorney with Milwaukee-based La Fleur Law Office SC who represents the plaintiffs, said a notice of claim, a procedural step toward filing a lawsuit, was delivered to the MMSD in 2013.
Milwaukee-based law firm Kerkman & Dunn, hired by two Franklin residents, filed that notice “on behalf of all similarly situated owners and tax payers seeking to have the recent tax levy imposed by the MMSD and/or Franklin declared void and illegal,” according to the notice.
And, La Fleur said, Franklin did not consent to the taxation.
Franklin also has claimed it did not consent, according to its most recent response. According to a 2012 city memo, staff members were to tell residents that the decision to tax them “was outside the direct control of the City and was not approved by the City.”
The alleged lack of consent is central to the plaintiffs’ argument that the MMSD is illegally taxing their properties.
La Fleur declined to comment further on the requests for dismissal until more briefs have been filed to support those claims.Follow @bkevit