Aurora to appeal judge's decision to uphold Waukesha County board vote

Milwaukee Business Journal, Mar. 23, 2006

by Rosland Briggs Gammon

Aurora Health Care said Thursday it will appeal the decision by a Waukesha County Circuit Court judge to uphold an April 2005 Waukesha County board vote rejecting Aurora's proposed $85 million, 88-bed hospital in the town of Summit.

The ruling by Judge Mark Gempeler dismissed the Milwaukee health system's and the town of Summit's claims in a lawsuit against Waukesha County and 21 county supervisors. The lawsuit, filed in May, accused the board of acting illegally in turning down the proposed hospital, and claimed there were no grounds for the board to reject Summit's rezoning and master plan changes. Summit's Town Board unanimously approved the changes in December 2004.

"We believe the judge erred both procedurally and substantively, and did not address the important fundamental issues in this case," Jeff Squire, a spokesman for the Milwaukee-based health system, said Thursday. "Aurora remains fully committed to bringing a 21st century medical center to western Waukesha County."

Aside from an overturn of the ruling by an appellate court, Aurora also could move forward with its plans if Summit were incorporated, which would mean its decisions wouldn't have to be approved by the Waukesha County Board. The town began researching the option in July. A second zoning change request also could prevail if it went before the new Waukesha County Board after an April election. Both options would require a longer wait.

Aurora also has a pending lawsuit against the city of Oconomowoc after the city council in 2001 voted against plans to build a hospital in that community.

Aurora agreed to buy land from Pabst Farms developers in 2003 and announced plans for its hospital at Interstate 94 and Highway 67 in April 2004. Aurora has said the hospital would increase competition for health care in Waukesha County, which would improve medical care and lower costs. However, opponents have said the proposed hospital would duplicate services and lead to higher health care costs.

Jim Walden, co-chair of the Concerned Business for Responsible Health Care, a coalition established to fight the hospital development, said Gempeler's ruling reaffirmed "that the hospital is not wanted or needed." He said an appeal by Aurora and Summit would increase legal fees that would be passed to consumers.

"The question is: When is Aurora going to stop?" Walden said.

Sandra Peterson, a spokeswoman for ProHealth Care, which operates a hospital about three miles from the proposed site, said the health system didn't have a comment since it was not a party in the litigation.

In issuing his ruling today, Gempeler said he reviewed papers filed in the case for more than 100 hours. He didn't hear oral arguments from attorneys during the hearing, which lasted less than 30 minutes.

"To focus on the purpose and motives of individual supervisors would set up an unpalatable gamesmanship by legislators, and would inhibit free exchange of ideas and thoughts on a particular topic," Gempeler said in his oral ruling. "The court is not looking for perfection and I have yet to see a perfect legislative process."

Gempeler agreed with the board that health care issues could be considered in making their decision as long as it wasn't limited to competition. He said the board also considered water usage in rejecting the proposal.

Raymond Pollen, an attorney who represented the Waukesha County Board, said "the judge reviewed the record and found that the county board acted based on legitimate factors and upheld their decision on that basis."