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Eminent domain case centers on project timing

By Paul Snyder

Attorneys for a Madison bar say the University of Wisconsin System should not be allowed to bully a smaller neighbor into surrendering to the threat of the use of eminent domain.

“The big issue here is: Does the UW System have the right to wave their wand and say, ‘Yep, some day in the future we’re going to build here, trust us,’” said Mike Wittenwyler, an attorney in the Madison office of Godfrey & Kahn SC representing Brothers Bar & Grill. “Does that mean that private property owners should just give up?”

Brothers is suing the state for invoking eminent domain for the bar property to make room for a project for which the UW System has no plans, permits or construction timelines.

At a preliminary hearing for the case Tuesday, Dane County Circuit Court Judge Peter Anderson said his early impression is the law favors the state’s ability to invoke eminent domain, but the question remains when the state can invoke it.

READ PAUL SNYDER’S HOT TOPICS BLOG: Eminent domain decision imminent

“If you’ve got 40 percent of the funding and you’re getting the rest in 10 years,” he said, “is that really open for condemnation now?”

That question will be at the heart of the lawsuit, which will go to trial in Dane County Circuit Court on April 8 and 9. Wittenwyler said the judge’s decision will either open the door for unencumbered use of eminent domain or keep it as a rarely used tool.

The University of Wisconsin-Madison, owner of the entire block along University Avenue except the Brothers property, wants to eventually build an estimated $43 million music performance hall on the block. Unable to settle on a purchase price for the Brothers building, the UW System Board of Regents last year tried using eminent domain, rather than negotiating a price, to acquire the bar building.

The music school project, expected to be financed entirely through private donations, was approved in the state’s 2007-09 budget. To date, the project has about $20 million in contributions.

David Miller, UW System vice president of capital planning and budget, said there’s no question the project will happen. It’s just a question of when.

“And the UW System wants to know it has the site before it starts spending money for plans,” he said. “Once we start the planning, then we can get a better idea of timelines.”

But without timelines, the UW System has no argument to condemn the Brothers property now, Wittenwyler said. The owners want proof this project is coming soon.

The $20 million raised to date has been through anonymous contributions, and Anderson decided Wednesday those donations should remain anonymous, and attorneys for Brothers cannot question the donors during trial.

Although he said it was not a damaging blow to the plaintiffs’ case, Wittenwyler called Anderson’s ruling disappointing.

“I think we should’ve been able to question the donors’ contributions,” he said. “We’re talking about kicking guys out of private property that are paying taxes now, and this money might not even be made fully available for six years.”

Bill Cosh, spokesman for the Department of Justice, which is representing the UW System in the case, said the state’s attorneys will not comment on the case while it is still under review.

The central issue, Wittenwyler said, is that unless the construction is certain, the state should not be allowed to invoke eminent domain. If the judge determines at trial that the use of eminent domain is justified for taking Brothers Bar, Wittenwyler said, the UW System will have free rein to use it in the future.

“I think anyone who looks at the university’s budget or the state budget can see tight times,” he said. “If they can look at a project and see they can save money by going the condemnation route, what’s stopping them?”

But the UW System has had the power to use eminent domain for years and only used it in rare circumstances, Miller said, and that likely isn’t going to change. Nothing about the case, he said, changes the laws governing the UW System’s use of condemnation.

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