by Victoria Heldt
Frederic E. Mohs, et al. v. City of Madison
(Wisconsin Court of Appeals, October 27, 2011)
In this case, Mohs, among other landowners, challenged the City of Madison Common Council’s decision to grant a Certificate of Appropriateness to Landmark X. The Edgewater Hotel, owned by the Faulkner family, was in need of renovation in order to be “economically sustainable.” Landmark X, a development company, planned to purchase the property for redevelopment. Since the building was located within an historic district, Landmark X needed a Certificate of Appropriateness from the City’s Landmarks Commission. The Commission denied the certificate, but the City’s Common Council overruled that decision within its jurisdiction and granted the certificate. The case went to the circuit court, which affirmed the Council’s decision.
The Court begins its analysis by noting that, in a certiorari review, the appellants (in this case the landowners) have the burden to show whether 1) the governmental body’s decision was within its jurisdiction; 2) the body acted according to law; 3) the decision was arbitrary or oppressive; and 4) the evidence of record substantiates its decision. The Court found that the landowners failed to meet the burden. They based most of their argument on the governing ordinance which read:
“The Council may, by favorable vote of two-thirds (2/3) of its members, based on the standards contained in this ordinance, reverse…the decision of the Landmarks Commission if, after balancing the interest of the public in preserving the subject property and the interest of the owner in using it for his or her own purposes, the Council finds that, owing to special conditions pertaining to the specific piece of property, failure to grant the Certificate of Appropriateness…will cause serious hardship for the owner, provided that any self-created hardship shall not be a basis for reversal…”
The Landowners first took issue with the word “owner” that appears within the ordinance. They argued that since Landmark X did not own the property, it could not experience any hardship from the withholding of a Certificate. The Court rejected this argument, concluding that the existing condition of the building (which the granting of the Certificate hopes to alleviate) presents a hardship for anyone who owns or intends to own the building.
Next, the landowners turned to the ordinance’s requirement that the governing body balance the public and private interest in the property. They claimed that the Council failed to address this within their ruling. Landmark X supported the claim with the ruling in Lamar Central Outdoor, Inc. v. Board of Zoning Appeals of Milwaukee in which the Court reversed a municipality’s decision because it lacked an explanation of reasoning. Here, the Court found that the Lamar claim was forfeited because it was not preserved in trial court. The claim appeared for the first time in a reply brief, which is disallowed. The Court clarified that, even if it had reviewed the Lamar claim, it would have been rejected. It found that comments made by a Council-member expressed that the renovation would serve both public and private interests in the dilapidated building. These comments constituted a showing that the Council analyzed the situation in light of both public and private interests.
Under the umbrella claim that the Council failed to make required findings Landmark X made several more arguments, all of which the Court rejected. They argued that the Council failed to meet the “special condition” requirement of the ordinance. They interpreted the ordinance to mean that the hardships endured by the owner must be unique and, in this case, the conditions were not specific to Edgewater. They purported that this situation could be similar to that faced by other building and hotel owners. The Court rejected this argument due to lack of analysis and support. In the remainder of the opinion, the Court dismissed three more minor claims due to a lack of support and a failure to present a logical argument. The trial court’s decision was affirmed.
