Madison property owner Fred Mohs expects to appeal a court decision over the Edgewater Hotel expansion that could significantly delay or even kill the $98 million project.
A Dec. 30 decision (PDF) by Dane County Circuit Judge Juan Colas dismissed Mohs' lawsuit against the project. Colas wrote that the Common Council acted properly when it overruled a decision by the city's Landmarks Commission, which had denied the Edgewater project a certificate of appropriateness.
Mohs has until Monday to appeal Colas' decision, and although he hasn't made a final decision, he said this week that he expects to do so.
The reason is that Colas, despite ruling against Mohs, found that the Common Council was given incorrect instructions by City Attorney Michael May when debating the project. The council was advised it could grant Hammes Co., the proposed developer, a hardship exception to zoning rules, when the law required that this apply only to the building's owner.
Also, according to Mohs, Hammes Co. was granted a hardship exception because it proposed removing tiles from the original hotel structure, to create a vapor barrier in the walls. But the developer has now decided not to do this.
"This council has never [before] overturned the Landmarks Commission," Mohs says. "So now they do it and they do it based on advice from the city attorney that was wrong."
Appealing Colas' ruling at the appellate court level could easily take a year and, even then, the losing party could seek state Supreme Court review.
Bob Dunn of Hammes Co. did not return a call from Isthmus. Previously, both Ald. Bridget Maniaci and City Attorney May have said the project can't move forward while a lawsuit to block it looms. According to May, the Hammes Co. says "there is a financing impediment so long as the suit is pending."
An extended lawsuit could also mean the city's TIF subsidy would have to go before the council again, because it would be part of a different city budget.
Mohs argues that his lawsuit doesn't have to kill the project. "There could be a compromise here," he says, referring to design changes to reduce the project's height and move it away from Wisconsin Avenue.
Mohs knows many people will see his waiting until the last minute to file an appeal as a stalling tactic. But he says he waited in hopes of meeting with Mayor Dave Cieslewicz and Dunn to find a compromise. He adds that while he will be footing the bill for a lawsuit, many people are encouraging him.
"I've threaded my way through my business career with an amazing lack of lawsuits," he says. "Suing the city of Madison is almost unthinkable. But in this case, I think we've lost our way."
