The rulings

Waukesha Freeman, May 26, 2006

Waukesha County Circuit Court Judge James R. Kieffer rendered a number of key rulings Thursday on motions filed in Aurora Health Cares 2001 lawsuit against Oconomowoc officials that claims the city acted illegally in using zoning powers to block construction of a new hospital in Pabst Farms. Among them:

That the city violated its own municipal code in not filing a formal petition with details of the rezoning plan before the plan commission and common council acted on the request.

The council eventually voted in favor of rezoning the 43.5 acres at Pabst Farms from suburban commercial, which would have allowed for construction of a hospital, to suburban industrial, which disallows it.

The city claimed a formal zoning application was not necessary, a position Kieffer called unreasonable. Kieffer said that by not filing an application the city ignores the majority of its own (zoning) ordinance and removes vital checks from the system including a review by Oconomowocs zoning administrator, who must determine if zoning petitions are complete and if they are in harmony with the citys master plan.

That Oconomowoc officials violated the states open meetings law in not properly posting a meeting where the potential Aurora hospital was discussed in closed session.

Aurora had argued that Oconomowoc violated open meetings laws at March 20, 2001, and April 12, 2001, common council meetings, saying that the hospital plans and zoning changes were improper topics for closed sessions held at both meetings.

It also argued that city officials did not properly inform the public of the April 12 meeting in area newspapers and with public postings.

Kieffer said facts were still in dispute regarding what was actually discussed in the closed sessions at both meetings, and that issue could be debated at trial.

However, Kieffer agreed with Aurora in saying there was undisputed evidence that city officials violated open meetings laws because they could not prove that notice of the April meeting was indeed posted in public places and not just sent to area newspapers.

That Oconomowoc may not be immune from facing damages in the case.

He said the Oconomowoc Common Council knew its decision blocking construction of the hospital would harm Aurora yet proceeded anyway in changing the zoning on the proposed hospital site.

Aurora, in a court filing, said that decision has cost the hospital system $59 million in lost revenues and increased construction costs.
Aurora has alleged that the city intentionally rezoned parcel five for the purpose of prohibiting Aurora from building a hospital and competing with ProHealth (Care), Kieffer said.

Aurora has further alleged that the city did this for the sole, illegal purpose of protecting ProHealth. If all of these facts are true, then the city acted intentionally, willfully and maliciously, and its immunity will not apply.