Clarification: This column states that Thomas Degen owns the Midas Muffler service center and Perkins restaurant on University Avenue. It would be more correct to say that Degen, through Degen & Associates LLC, owns the land and buildings; the service center and restaurant are independently owned and operated.
In the 30 years that Bill Whisenant has done business in the same location, he's always had "excellent" relations with his neighbors. "I've built my life around this enterprise," he says proudly. Now he feels his livelihood is threatened by a neighbor - Thomas Degen - who wants to gain control of his land. That strikes him as unfair.
"It's not like he was here and I moved in," notes Whisenant, the proprietor of Motorcycle Performance, 5205 University Ave.
Dr. Morris Link, who owns Spring Harbor Animal Hospital, 5129 University Ave., is of similar mind. He calls Degen "a person who has gotten some land and [is trying] to drive down two businesses so he can buy the property cheap." The hospital has operated at its current location for 47 years; Link's been there for 40.
Located between the motorcycle shop and animal hospital is a thin strip of land acquired by Degen in 2001. He also owns the Midas Muffler service center in front of Whisenant's shop, the lot behind it and the Perkins restaurant.
Whisenant has an easement on part of this strip, to access his business. Link has no easement, but for decades has used the strip, which doubles as a fire lane, to access the back of his building and eight employee parking stalls.
Both Whisenant and Link say Degen has expressed interest in their properties, as part of an undisclosed development scheme. Whisenant is willing to sell, but says Degen offered less than market value. Link would like to stay put.
Last year, says Whisenant, Degen ended a longstanding agreement that allowed the motorcycle business to rent space for a sign on University Avenue.
Recently, Degen's neighbors learned he's gotten city approval for a "site-improvement plan" to move the fire lane and erect a fence along his property line. This blocks access to the animal hospital's back entrance and employee parking and, says Link, compromises fire-vehicle access.
"It's a complete disregard for my fire hazard," says Link. "On weekends, we have 30-40 animals in this hospital. What would happen if there's a fire?" (Madison fire officials approved the plan.)
The move will also eliminate some parking for Motorcycle Performance and make it difficult for trucks to make deliveries or vehicles to drop off motorcycles in trailers without having to back up onto University Avenue, a safety hazard.
Degen's changes, says Whisenant, "don't represent a logical enhancement of his property." Rather, they seem calculated to make things harder on his neighbors and drive down the value of their properties.
Last week Monday, Whisenant filed an action in Dane County court seeking to bar Degen from implementing his plans. That night, presumably at Degen's instigation (he refused to talk to Isthmus), a temporary fence was erected along Degen's property line, doing what the planned permanent fence will do: narrow the strip and cut off access to Link's eight parking stalls. (It even locked in the hospital's two Waste Management bins.)
On Friday, in a courtroom filled with Whisenant's witnesses and supporters, the case was heard by Dane County Judge Michael Nowakowski. Attorney David Knoll sought to establish that the plan was approved without consideration for existing businesses and that Whisenant has made open and notorious use of the strip for decades, meaning he is entitled to continued use. The proceeding adjourned to June 5 before the defense was able to present its case.
District Ald. Mark Clear isn't sure how to view this situation: "It's a property owner exercising his rights to manage his property - or it's a big bad developer trying to squeeze out two businesses so he can make more money." He guesses the truth is "somewhere in-between."
And although Clear says "everything Degen is doing is within the letter of the law," he notes, as does Madison planning unit director Brad Murphy, that the will of the neighborhood can affect whether development plans get approved.
As Clear puts it, "If I were a developer, I'd certainly want to maintain good relations with my neighbors, especially those with longstanding ties to a neighborhood."
DA's office misread rape case
Reports released by the Madison Police Department to Isthmus regarding a sexual assault reported by Lorraine Cook suggest that the Dane County District Attorney's Office badly misread the case record.
As Isthmus has reported ("DA Won't Charge Alleged Rapist," 5/2/08), Deputy DA Judy Schwaemle last month gave Cook a letter explaining that the office was declining to charge her alleged assailant, due to numerous perceived inconsistencies in her statements to police. These included Schwaemle's belief that Cook said the man who lured her into his van and raped her also broke her arm several days before.
"[J]urors would conclude that someone who was seriously injured...by a person would not be likely, a few days later, to willingly accompany that person," Schwaemle wrote.
In fact, the reports do not substantiate that Cook blamed both attacks on the same man. The confusion may owe to a reference to her rape on "Wednesday, Jan. 3." There is no such date. Cook reported being beaten and raped on Tuesday, Jan. 8; her arm was broken by someone else on Thursday, Jan. 3.
Madison Police Capt. Carl Gloede, who read Schwaemle's report after reviewing the case file, says the DA's office must make difficult decisions about what cases can be successfully prosecuted. He can't explain why her findings don't seem to match the reports.
"The reports are pretty clear," he says. "I think the police and detectives did a pretty good job."
District Attorney Brian Blanchard says Schwaemle is looking into it.
Cook's alleged rapist admitted to police, as he did in a call to Isthmus, that he had sex with Cook, but he claims it was consensual. The case file reports that Cook suffered "vaginal and rectum lacerations." Cook's injuries were said to have been caused by "blunt force trauma" and were more severe than usual for sexual assaults.
Ch. 27 recently reported that Cook's assailant is now under investigation for inappropriate contact with two teenage girls. He denies it.
Brat brawl
The World's Largest Bratfest, the Madison event which last weekend set a new world record for the most brats sold, at 191,712, is taking a tough tack toward an alternative event that annually gives away about 600 brats.
Last week, an attorney for Metcalfe Inc., the event organizers, sent a letter to the Alliance for Animals claiming its use of the name World's Largest Veggie Brat Fest is an infringement on its trademark name.
"[The Alliance for Animals] is obviously intending to trade on the goodwill in the Brat Fest Marks, since it has scheduled its festival for the same time period as the food festival in connection with which the Brat Fest Marks are used," said the letter from attorney Robert Petershack.
A similar letter was sent to Whole Foods, which hosted the event. Petershack seeks assurances that the alternative event will make no further use of this name "or we will be forced to take appropriate action."
"It's strictly a trademark issue," says Tim Metcalfe, the event's top brat. "Like if somebody were to start a new newspaper in town called Isthmus." He notes that the owners of trademarks are required to defend against infringements.
Lori Nitzel of the Alliance for Animals says she's still weighing how to respond.
With friends like these...
According to a police incident report, a man was beaten and pistol-whipped last week inside an east-side Madison bar. No one from the bar called police, who were notified when the man was dropped off at a local hospital at about 1:30 a.m. He told police his assailants had threatened to kill him. The name of the bar where the assault took place: A Place for Friends.
