Two Mansion Hill Historic District residents are suing the city of Madison over its approval last month of the Edgewater Hotel redevelopment.
Fred Mohs and Gene Devitt filed suit Thursday in Dane County Circuit Court, arguing the Common Council defied the city’s landmarks ordinance by approving Brookfield-based Hammes Co.’s proposed $98 million redevelopment of the downtown hotel.
The city’s Landmarks Commission last month denied a certificate of appropriateness to the project on the grounds that the project failed to meet many standards set in the city’s landmarks ordinance. However, the Common Council got the two-thirds majority it needed to overturn that decision.
But Dean Richards, the Waukesha attorney representing Mohs and Devitt, said that does not mean the council can overturn the decision without reason.
“This isn’t a carte blanche situation,” he said. “They can overturn the decision if they argue the project is consistent with the standards in the ordinance.”
The standard in question, Richards said, is whether an economic hardship needs to be considered to circumvent the ordinance, which also restricts building size and height.
Richards said Hammes’ argument for economic hardship was the fact that the existing building was not properly maintained and construction of a new nine-story tower was needed to help generate the cash to do the restoration of the existing space.
Hammes representatives did not immediately return calls for comment.
Mohs said city building standards should not be thrown aside to tackle maintenance issues.
“So what, then, do we encourage demolition by neglect?” he said. “We reward landlords who let their properties deteriorate?”
Hammes did not make the economic hardship argument on maintenance issues alone, said Common Council President Mark Clear.
“The hardship was created by the site itself,” he said. “The fact that it’s a historic tower that can’t be rehabilitated without the money generated from a new building, the fact that it’s in a historic and the fact that it’s on the water.
“The evaluation of whether a hardship is there, really, is pretty subjective.”
And if it’s subjective, Clear said, it will be surprising if the court overturns the decision made by a governing body.
“Courts tend to give a fair amount of leeway to the legislative body,” he said.
City Attorney Michael May was unavailable for comment on the lawsuit.
The case will not be easy to win, Mohs said, but project opponents still need to try.
“This is an unprecedented expansion of what hardship means,” he said. “If you’re living in a single-family house in the suburbs, you’re paying to live in a certain kind of neighborhood. Now all it takes is one guy to give some reason of hardship and build a multi-family building next door.
“We saw history slipping away from us on this.”
The redevelopment project includes renovating the 1946 hotel and building a new nine-story tower, a public plaza on Lake Mendota and underground parking ramp.
Mohs said it’s possible the residents could come to an out-of-court agreement with Hammes if it decided to change plans regarding height, setback and parking, but he said he thinks that is unlikely.
“Even if we go that route,” he said, “this isn’t going to end up where we want it.”