Judge to review blocked hospital

Past decisions upheld rezoning in Oconomowoc

Milwaukee Journal Sentinel, Feb. 10, 2006

By AMY RINARD
arinard@journalsentinel.com

Waukesha - Past decisions favoring the City of Oconomowoc in a lawsuit filed by Aurora Health Care over a rezoning that blocked a new hospital will be reviewed and could be overturned, a judge said Thursday.

"This court itself has to be at ease with these rulings," Waukesha County Circuit Judge James R. Kieffer said during a hearing on Aurora's request that the prior decisions be reviewed.

Lawyers for both the city and Aurora agreed that Kieffer had the authority to reconsider and overturn those rulings.

Kieffer, the third judge to preside in the long-running civil case, heard arguments from both sides on prior court decisions related to whether Oconomowoc violated state laws governing open meetings and public records and whether Oconomowoc violated its own ordinances by rezoning a site planned for a new hospital without receiving a written application. Previous judges ruled in favor of the city.

Aurora sued the city in August 2001 after the Common Council rezoned a 43-acre parcel of land in the Pabst Farms development so that a hospital could not be built there. In late March of that year, Aurora had announced plans to build an $85 million, 88-bed hospital at the site.

The lawsuit was put on hold in 2004 after Aurora focused its attention on another hospital site in Pabst Farms, this one in the Town of Summit south of I-94, and Oconomowoc city officials pledged to not speak out against Aurora's new plans.

But Aurora said at the time that if its plans in Summit did not succeed, the lawsuit against Oconomowoc could resume. Last April, the Waukesha County Board refused to endorse the town's approval of a land use change to permit construction.

Aurora and the Town of Summit then sued the county, a case that also is pending in Waukesha County Circuit Court.

Brian McGrath, representing Aurora in the case against Oconomowoc, argued that city officials violated the open records law by failing to comply with the company's request for minutes of closed meetings at which, he contends, city officials discussed how to block the hospital plan by rezoning its proposed site.

Aurora also claims that city officials violated the open meetings laws by discussing their strategy to rezone the hospital site during meetings that were closed to the public and the media and described in public notices as being for the purpose of discussing a developer's agreement.

"This is not a proper subject to happen behind closed doors," McGrath said.

But Lisle Blackbourn, representing the city, said that the Pabst Farms developer's agreement was discussed at those meetings and that to argue otherwise is to call the city officials liars who have testified to that in affidavits.

"What motivation would they have to lie about what went on at a meeting? Absolutely none," he said.

Blackbourn also argued that city staff complied with Aurora's open records requests as best they could and that "boxes of documents were provided" and nothing was withheld.

Aurora's attorney also argued that because there never was a written application submitted to the city Plan Commission seeking the rezoning of the hospital site, Aurora did not know the rationale for the move and how it complied with the city's master land use plan.

Aurora officials were told an application was not needed because the rezoning was initiated by the city, McGrath said.

"How do you fight that when you don't know why it's being done?" he said.

Blackbourn countered that deference must be given to the city's own interpretation of the requirements of its zoning ordinance.

Aurora also petitioned the court for a declaratory judgment in the case on the grounds that the city's action was arbitrary, capricious and done for an improper purpose - to stop Aurora from competing with Oconomowoc Memorial Hospital, owned by ProHealth Care, which was strongly opposed to the new hospital plan.

The city denies that allegation.

Kieffer said he would take all the arguments under advisement and issue rulings at a later date.