Same-page rule kills C-store petitions

• Image

The stack of petitions in the foreground to block a rezoning of the new convenience store at First Avenue and Foster Street in Mitchell was considered invalid because legal language, signatures and circulator’s verifications were not on the same sheet of paper as required by law. (Chris Huber/Republic Photo)

Talk about it

Incorrectly prepared petitions were the downfall of an effort to place a zoning change on the ballot, according to the man who organized the signature-gathering work.

A group of local residents gathered about 600 signatures to force a vote on a zoning change that could allow the owners of a convenience store at the corner of First Avenue and Foster Street to apply for alcohol licenses and, eventually, video lottery.

Ray Borgen, the self-described “mouthpiece” against the zoning change, said the petitions he obtained from a local lawyer were in a three-page format, not the required one-page form.

“We dotted the I’s and crossed the T’s,” Borgen said. “We were careful and had everything notarized.”

But they used forms that in most cases didn’t contain the ballot language, signatures and circulator’s verification on the same page, as is required by state law, according to Finance Officer Marilyn Wilson. She had said Tuesday that many signatures were invalid but declined to say exactly why until reviewing the petitions further.

Those three requirements must be on a single sheet, Wilson said Wednesday. They can be on both the front and the back, but they cannot be on separate pages.

The zoning change foes learned of the problem Monday afternoon when Wilson told him the petitions were incorrect, Borgen said. Tuesday at 5 p.m. was the deadline to turn in the petitions.

“And I said, ‘Oh no,’ ” he said during a telephone interview Wednesday with The Daily Republic.

Borgen then sought advice and assistance from the South Dakota Secretary of State’s Office and from the state attorney general.

Both offices told him little could be done, since improper petitions had been used, he said. The only option was a court order granting a time extension to collect new names on proper petitions, he was told.

Borgen spoke with First Circuit Judge Sean O’Brien Monday and Tuesday, but the judge said there were no legal grounds to extend the time to gather signatures.

“I did some research and I advised him that I didn’t find anything in state law to extend the time,” O’Brien said.

“I didn’t give him any legal advice and told him to contact a lawyer,” the judge continued, noting that he could hear a case on the issue down the road.

“Everybody tried to be helpful,” Borgen said.

He said he was met with “kindness and assistance” at every stop — but he was also told the petitions were invalid no matter what steps he took.

“It was kind of like a drowning man grabbing for a matchstick,” Borgen said. “We tried everything we could. It was just a fluke.”

Wilson said there were 595 signatures on the petitions but only 34 were valid. She said she always advises people who are planning to circulate petitions to obtain legal advice after downloading copies of the petitions from the secretary of state’s website.

“The city doesn’t provide them for this very reason,” Wilson said.

Borgen said it was a learning experience — and he learned a harsh lesson.

“I put a lot of time into this,” Borgen said. “But I should have put in a lot more.”

He’s an independent sales representative and said he worked on the petition drive in his spare time.

“I had never done anything like this before,” Borgen said. “I don’t think I had even signed a petition before.”

He received help from neighbors of the store who are opposed to the sale of beer there. People who were involved in the successful campaign to repeal the City Council decision to allow the on-sale of hard liquor on Sundays were also involved, Borgen said.

Although some of those people were veterans of an earlier petition drive, no one noticed these petitions weren’t the same as the ones used for the Sunday liquor vote, he said.

“It was a requirement and it was a human error that missed it,” he said.

Borgen still turned in the petitions by the Tuesday deadline, since the signatures on the front pages of the threepage sets were deemed valid.

He said he was advised to turn the petitions in to meet the deadline in case the zoning change foes fight the zoning change in court.

“There is still a possibility of legal action,” Borgen said.

He said he doesn’t blame the lawyer who gave him the petitions that he copied and shared with the circulators. Borgen declined to identify the lawyer, who has sent him a bill for his services. Borgen said he will pay the legal bill.

“I don’t blame the guy,” he said. “Sure, I’m frustrated by it. But I’m not going to waste time by worrying about things beyond my control.”

Borgen said he still feels he was on the right side of the argument and that the convenience store isn’t needed in the neighborhood, especially if it will sell alcohol.

“That kind of business is dangerous for the kids going to the pool,” Borgen said.

He has been open during the process about his own struggles with alcohol. That’s one reason Borgen was so passionate about blocking the sale of beer at the store.

“I drank hard for a lot of years and saw the effect it had on me and my family,” Borgen said. “Now I’m fortunate to know how good life is without the booze.”

He also hopes the signature-gathering effort will send a message to the City Council not to grant beer licenses to the store’s owners.

“I hope the City Council will say, ‘Hey, 600 people disagreed with us on this,’ ” Borgen said.

He said the Planning and Zoning Commission voted 5-1 against recommending the zoning change and noted that City Attorney Randy Stiles repeatedly warned the council to be careful as it weighed granting the zoning change for the business.

Borgen said it’s been a personal crusade and he has developed a negative feeling about Doug Backlund, Robin Ackman and Greg Lyman, the owners of the store. Backlund, a City Council member who has recused himself from discussing or voting on the issue at meetings, stopped by his house this summer to ask him why he was so stridently opposed to the zoning change, Borgen said.

He said after he told him, Backlund mentioned that Borgen was using his garage to warehouse items that he sold and said he might be violating his zoning. That led Borgen to appear at a council meeting and say he “despised” Backlund and the way he and his partners were conducting their business.

Lyman said the partners knew Borgen ran his business out of his home and thought he might have been interested in obtaining highway business zoning, which the developers were seeking at that time. They also asked a local landlord if he wanted to join in requesting a zoning change for the area.

Lyman said he felt they were upfront about their intentions and, noting what Councilman Mel Olson said at a meeting last month, wondered if they had been “too open” during the process.

“It kind of backfired on us,” he said. “I believe in the American system. Sometimes it’s a little overboard.”

It seems like elected leaders can’t make a decision without it being placed before voters, he said.

The developers could apply for a beer license or licenses now, but right now, Lyman said he’s unsure what they will do. They remain amazed by the length of the process and the amount of passion that has been stirred up, especially after learning a gas station had been at the site from 1931 to 2009, he said.

“We’d like to let the dust settle a little bit,” Lyman said. “And we’d like to stay out of your paper.”

Borgen said he is also weary of the process but still may attend council meetings to argue against giving the store beer licenses.

One thing is certain, he said. Although he lives across the street from it, he said he will never set foot in the store nor buy anything from it.

“Absolutely not,” Borgen said. “No, no, no.”

Tags: city council, doug backlund, news, local, petition, c-store, alcohol