Judge to reconsider ruling in Aurora's favor

Oconomowoc Focus, July 11, 2006

Jonna Clark
Staff Writer

City of Oconomowoc - Though it appears the city and Aurora Health Care are going to trial, the circuit court judge who ruled in Aurora's favor in May, says he will reconsider that ruling at trial.

Waukesha County Judge James Kieffer decided in May that the City of Oconomowoc illegally rezoned land as a means of blocking Aurora's bid to build an 88-bed hospital in Pabst Farms.

In response, Aurora has since applied for a special use permit with City Hall, and officials have said they would like to start construction on Parcel 5 as soon as this fall.

City Administrator Diane Gard said the city will be repeating the steps they took back in 2001 to rezone the Pabst Farms land in question and in response to Kieffer's ruling and suggestion.

Mayor Maury Sullivan said the city is pursuing four strategies for dealing with the Aurora situation, including negotiation, reconsideration from the judge, filing an appeal on the decision and redoing the rezoning process.

Sullivan said that a potential loss of a trial could mean millions of dollars in damages the city and its taxpayers would be liable for.

"I'm not willing to play with taxpayers' money," he said, and added that every possibility must be explored to ensure the best outcome for the people of Oconomowoc.

Adding to the complex and contentious situation is the recent announcement from officials that General Growth Properties Inc. (GGP) and Pabst Farms Development Inc. have entered into a partnership agreement to build an open-air regional shopping and entertainment center on 110 acres in Pabst Farms where Aurora originally wanted to locate.

In December 2001, Judge Kathryn Foster ruled that the city had done no wrong by rezoning the land in question.

Aurora's attorneys have argued that the city violated open records laws by not complying with Aurora's requests for minutes from closed meetings.

An affidavit from former council member Jerry Erdmann testified that officials had discussed how to keep a hospital from the proposed site.

At a hearing held in February, Kieffer, the third circuit court judge to get the suit, got agreement from attorneys on both sides to agree on his authority to reconsider and possibly overturn past rulings.

Aurora contends in 2001 the city violated open meetings and public notice laws put in place by the state, and zoning ordinances.

Aurora's Susan Ela, president of the Kettle Moraine Region, has said they will move forward based on Kieffer's decision.

In 2001, the city rezoned a parcel of land in Pabst Farms, which made the possibility of building a hospital there impossible.

Aurora announced plans to build the proposed hospital in March, the city's rezoned the parcel in the Spring 2001, and Aurora filed suit against the city in August.

The lawsuit was put on hold in 2004 while Aurora pursued plans to build the hospital on the other side of I-94 on a piece of Pabst Farms in the Town of Summit.

Opposition to the new hospital has come from some residents, business organizations and ProHealth Care, which operates Oconomowoc Memorial Hospital, a mere three miles from the proposed building site.

In April 2005, the Waukesha County Board voted against amending the Town of Summit's master plan to allow Aurora to build a hospital, and Aurora and Summit launched a suit against the county.

City Attorney Lisle Blackbourn has called the plan for a new mall in Pabst Farms a vindication of the city's initial rezoning move in 2001. He said the proposal is more consistent with the master plan for the area.

Blackbourn said the original intent for the land in question was to be used as "swing space" or as an area to be kept open for potential commercial development.

Before Aurora Health Care came to town in 2001 to build a hospital in Oconomowoc, the land immediately north of I-94 was zoned suburban commercial. Blackbourn said that was an incorrect designation and the city recognized the error when Aurora came courting.

The original intent for zoning for the 11 parcels that make up the swath of land next to the highway was retail commercial, he said.

Blackbourn also has said the development of a mall in the area in question would be a more consistent use in terms of what would be best for the $24 million TIF district.

City officials have maintained that a hospital with tax-exempt status in Pabst Farms would harm the city's ability to pay back the TIF as quickly as a commercial venture.

Aurora officials have said they would pay the city more than $300,000 per year in place of taxes and pointed out that a new Wilkinson Clinic would pay taxes.

City officials have said they will appeal Kieffer's ruling, and no trial date has been set.

Both Aurora and city officials have said they are willing to consider a settlement and much local speculation has centered on what the details of a settlement would entail.

"We are pursuing parallel paths and alternatives for dealing with the situation," Gard said. "We will see which one comes to fruition."