Lawsuit between Wauwatosa, urban planner moves forward after judge’s signature

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A lawsuit between a Milwaukee urban planner and the city of Wauwatosa will move forward after Milwaukee County Circuit Court Judge Christopher Foley signed an alternative writ of mandamus. Under the judge’s order, the city must set up a Board of Zoning Appeals meeting to reconsider a proposal for a housing development or appear in court.

Robin Palm’s lawsuit, filed in late March, asked the judge to order Wauwatosa officials to take up his appeal in a zoning meeting after the Wauwatosa Common Council voted to approve Hansen Storage Co. to build warehouses and offices at 1300 Glenview Place. The city more than a year ago considered a proposal from General Capital Group to build apartments on the property.

Foley on Thursday signed and filed the application for alternative writ, according to court records. The city made a motion to quash the petition a day afterward, court records showed. A motion hearing has been set for Aug. 8 at 10 a.m.

“’Tosa has decided to take it further in the Circuit Court on the contention that the BOZA has no jurisdiction over conditional use decisions,” Palm told The Daily Reporter. After filing two appeals, city officials told Palm the board had no jurisdiction on what the council decided in March, he added.

The city anticipated the court date in August, Eva Ennamorato, a communications person for Wauwatosa, told The Daily Reporter. “This case will proceed in court,” she added.

Palm filed the writ to order Wauwatosa Development Director Paulette Enders schedule the BOZA meeting, according to the petition. The contended Enders didn’t have a clear unequivocal duty to do so, according to the city’s response.

As previously reported by The Daily Reporter, Palm filed a writ of mandamus, a motion for a court to order a smaller governing body to perform a legally required act, directing Wauwatosa zoning administrator Paulette Enders to schedule a hearing of the Board of Zoning Appeals, according to the petition. The city must respond in writing within 18 days of receiving a summons, the petition stipulated.

The lawsuit said Palm filed a BOZA appeal in late March, in which the city replied in an email that the BOZA committee had no jurisdiction to hear appeals of the Wauwatosa Common Council’s decision. Palm, who is representing himself, noted this in violation of Wisconsin Law, during an interview with The Daily Reporter.

“The claimant had a clear right to something, which is a case asking for an appeal, which was denied. The administrative official has a clear and obvious duty. It’s not wishy-washy, there’s no discretion involved. The code says must and shall forward this appeal to their supervisors. There has to be showed harm from the action. I’m out 700 bucks, they voided both of my applications and didn’t refund the fees. But that’s immaterial to this land use decision which is pretty important and for them to go the opposite way in two weeks when they spent so much time in the other project is concerning,” Palm noted.

The planner paid twice for his appeal to be heard and a city administrator and city attorney replied both in email and in writing that BOZA had no power or jurisdiction to overturn conditional use approvals issued by an act of the Common Council, according to the complaint.

Wauwatosa Mayor Dennis McBride told The Daily Reporter the city believed the lawsuit had no merit and expected to prevail. He deferred additional questions to City Attorney Alan Kesner, who said the city wasn’t served papers yet and declined to comment further until the matter could be reviewed.

Pursuant to Wisconsin Statute 62.23(7)(e)4, appeals to the Board of Appeals may be taken by any person aggrieved or by an officer, department, board or bureau of the city affected by any decision of the administrative officer.

“Such appeal shall be taken within a reasonable time, as provided by the rules of the board, by filing with the officer from whom the appeal is taken with the board of appeals a notice of appeal specifying the grounds thereof. The officer from whom the appeal is taken shall forthwith transmit to the board all the papers consulting the record upon which the action appealed from was taken,” the law states.

The Wauwatosa Common Council voted on March 18 to close the allow Hansen Storage Co. to build warehouses at 1300 N. Glenview. Fox Point-based General Capital Group proposed building more than 700 apartments at this address in 2021, but dropped the proposal a year later with McBride March on 27 citing interest rates, inflation and rising labor costs hampering development.

“We’re disappointed that the financing couldn’t come together on this, we wish it could have been a housing project. We understand there is a housing shortage for everyone, particularly for people who are looking for affordable housing. We tried to provide that, but it’s a tough interest rate environment. Not just for affordable housing, but for market rate developments as well,” McBride added.

Not every Common Council member voted to approve the site for warehouse use. On March 21, the Common Council voted 8-5 to permit Hansen Storage to use the land. Joel Tilleson, an alderperson representing Wauwatosa’s 5th district, urged the city to wait for better options to come.

“I don’t think it would be out of line for anyone to believe that a short-term delay here won’t result in a better option for this land versus foreclosing those options with a long-term fix,” Tilleson said at a meeting.