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Posted: February 20, 2014 Attorney: Confluence referendum could affect other arts efforts

By Andrew Dowd and Julian Emerson

Taken from the Eau Claire Leader-Telegram

A once-blighted portion of Eau Claire's downtown that has become the city center's gem along the shore of the Chippewa River might never have happened if an April 1 city referendum had been in place a decade ago, Eau Claire's city attorney said.

Phoenix Park, which attracts thousands for concerts, an arts fair, other arts-related events and farmers markets, helped spur much-needed revitalization of downtown's North Barstow district, launching $45 million in private development in the district.

The project was financed in large part by about $4 million in tax increment finance district dollars, public money used to pay infrastructure costs with the intention that the tab will be repaid through property taxes from subsequent development.

But a referendum spurred by the proposed $77.2 million Confluence Project, a public-private partnership to build a performing arts center, student housing and commercial space, could have prevented Phoenix Park from happening if it had been in effect in the early 2000s, city attorney Stephen Nick said.

The upcoming referendum, if adopted, would limit public spending for the Confluence - and potentially other arts-related projects in the city - to no more than $1 million without voter approval via referendum.

"I think Phoenix Park, it's fair to say, was planned for some kind of artistic or musical performance," Nick said of the park that opened in 2005.

Wording questioned

Confluence backers said they worry the referendum would not only prevent city funding for that project but also other arts-related projects that use city dollars. They criticized the wording of the measure, saying it's deliberately vague and applies to far more than the Confluence Project.

Nick Meyer, publisher/founder of Volume One magazine, which promotes the arts in Chippewa Valley, said he questions the notion that Citizens Referendum Committee members, the organization that forced the referendum vote after collecting nearly 5,000 verified signatures, didn't intend for the measure to be more far-reaching than the Confluence Project.

"If they truly intended that this be about the Confluence, why not have the referendum say that instead of the convoluted version they came up with?" Meyer said.

Intentions defended

Referendum proponents contend the measure is aimed chiefly at the Confluence Project and not meant as an anti-arts measure. Mike Bollinger, the lead organizer of the referendum effort, acknowledged the referendum's language could be "interpreted as a broader measure." But that verbiage is largely the result of City Council members' insistence the referendum be worded in such a way as to not undo the city's $5 million pledge to the Confluence Project approved in October, he said. The current referendum wording is the best members of the Citizens Referendum Committee who authored it could come up with so didn't undo previous city action but still prevents the city from spending money for the Confluence Project without voter approval, he said.

"That drove the nature of the language we developed," Bollinger said. "That was our ultimate goal, a binding referendum, a goal that has been clearly stated over and over again. No subterfuge here."

Other effects

In addition to the hypothetical impact the referendum could have had on Phoenix Park, the April 1 ballot question also might impact projects planned for other parks.

"It may apply to other future projects," Nick said.

Even if public parks and buildings have other intended purposes, they still could be subject to referendum if they have the potential to host dramatic, musical or artistic performances, he said.

"Most of our city facilities have mixed uses at them," Nick said.

While Carson Park is known mostly as an athletic venue, a place for recreation and home to a museum, it occasionally hosts live music and artistic performances, city resident James Hanke said.

"One could make the argument that Carson Park is an arts venue," he told the council during a Jan. 27 public hearing.

Live music is played at the park during events, Hanke said, and a large music festival is planned there this fall. City officials are planning $5 million in seating upgrades sometime after 2018 for Carson Park football and baseball stadiums.

Band shell brought up

The Boyd Band Shell at Owen Park, home to municipal band and summer blues concerts, is another city structure that could be impacted by the referendum, Nick said. The structure was built in the late 1930s.

While he concedes the referendum wording contains some ambiguity, Eau Claire City Councilman Dave Duax said he doesn't believe the measure is intended to limit future arts-related ventures in the city. That wording includes the use of the word "building," he said, meaning the measure applies to performing arts buildings and not any location where the arts may occur.

"To me, it is clear it has to be a building for this referendum to apply," Duax said, adding he's unsure how the measure would apply to a proposed renovation of the city band shell at Owen Park, if it were to cost more than $1 million.

"I think the interpretation is this is for musical and theatrical performances. It is intended to deal with a project like the performing arts center. I don't believe (limiting the arts) was the intent of this group," Duax said.

Confluence Project supporters worry the referendum, if approved, would have a chilling effect on arts-related proposals.

"It's hard enough to make things happen in this community the way it is," Meyer said on behalf of Voices for Growth, a pro-Confluence organization pushing against the referendum. "But to have to go to a referendum battle every time, it is going to stop people from trying to make the arts happen in this community."

Shift of authority

In addition to limiting funding for the arts, the measure would change how city government works, at least as it concerns arts-related projects. Instead of allowing the City Council to control funding decisions regarding the arts, any arts-related city expenditure of $1 million or more would first be subject to referendum, transferring decision-making power for those projects from the council to voters.

"The proposed ordinance makes an institutional or procedural change in terms of how certain projects are funded," Nick said.

If the referendum is approved, the city attorney would decide whether proposed arts-related projects were subject to the measure. The City Council then would be asked to vote on those decisions.

Those choices may spark controversy and would be subject to a court challenge by anyone who disagrees with them, Nick said, creating project delays and legal costs associated with those projects.

Legal challenges?

Even if the referendum passes, Nick said there's still a chance it could be challenged in court because of conflicting case law and state statutes regarding whether it's legal to shift a core legislative power of the City Council - budgeting - to voters.

Meyer said he worries about the "legal mess" the referendum could create if adopted. He said adoption of the referendum would have a "grave impact" on the city's ability to enhance arts-related economic development efforts by replacing elected City Council members' decision-making power regarding projects with voters' decisions via a referendum.

"Whether or not you support the Confluence Project, the city referendum has very dangerous implications for the future of this community," Meyer said.

Bollinger said citizens deserve a say on whether millions of their tax dollars are spent on arts-related ventures.

"What matters is that people get the opportunity to vote on this," he said.

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