Market Square Theatre

A Dane County judge declined to issue an injunction Tuesday that would have kept the owner of a parking lot adjacent to the Market Square movie theater from enforcing a parking ban in the lot. The lot, which belongs to Market Square's former owner, is to be developed as senior housing.

A Dane County judge declined to issue an injunction on Tuesday that would have barred the owner of a parking lot adjacent to the Market Square Theatre from keeping movie theater patrons from parking there.

Circuit Judge Stephen Ehlke said the theater’s landlord, Market Square Associates, which owns the Market Square shopping center on Madison’s West Side where the five-screen budget theater is located, is unlikely to succeed in its lawsuit against the parking lot’s owner, Market Square LLC, which formerly owned the center but still owns one parking lot.

The decision gives Market Square LLC a clearer way ahead for the sale of the parking lot to a developer who plans to build an $11 million, 58-unit affordable senior apartment building on the spot that has been in the works since 2016.

MSA sued Market Square LLC earlier this month, saying that barring movie theater patrons from parking in the lot would imperil the theater, and would put MSA in breach of a lease that it has with the operator of the theater, Los Angeles-based Silver Cinemas.

MSA contended that past agreements gave it the right to allow continued parking on the lot by theater patrons. MSA also said in its lawsuit that without the parking lot, the theater would likely close and would probably not be replaced by another movie theater operator.

MSA’s lawsuit also included a letter from a Market Square LLC lawyer stating that the parking lot near the theater would be barricaded on May 1 to prevent use by moviegoers.

MSA bought the shopping center from Market Square LLC in 2007, but the sale did not include the parking lot adjacent to the movie theater, which Market Square LLC retained.

Lawyers for Market Square LLC countered that MSA ignored other legal developments that have occurred over the years related to the property, maintaining that none gave MSA and its tenants the right to continue parking in the disputed lot.

While Ehlke did not issue the injunction, he noted that the lawsuit will continue before him, and asked for a status conference in the case in about a month. After Ehlke’s decision, MSA attorney Albert Bianchi declined to comment, only saying that “we’ll see where it goes from here.”

Lawyers for Market Square LLC declined to comment afterward.

In arguments before Ehlke’s ruling, Market Square LLC attorney Andrew Clarkowski said MSA knew well in advance about the pending sale of the parking lot to MSP Real Estate of West Allis, which is developing the Normandy Square project. He said MSA “chose to wait until the 11th hour to mess up the deal.”

Clarkowski argued that under a lease with Silver Cinemas, as long as MSA provides reasonable access to the building for theater patrons, it has not breached the lease. There are other parking areas on the Market Square property that are not as close to the theater’s entrance. He also said MSA has had several opportunities since 2007 to buy the lot, but it hasn’t done so.

Clarkowski also suggested that as a theater which shows second-run movies priced at $3 per ticket, Silver Cinemas might even benefit from having affordable senior housing next door.

In making his ruling Tuesday, Ehlke had to decide whether MSA had a reasonable probability of success on the merits of its case, whether an injunction was necessary to maintain the status quo, whether MSA lacked legal recourse and whether MSA would suffer irreparable harm without an injunction.

Ehlke said he didn’t believe some or all of those factors could be met. He cited the language of a 1991 lease that clearly contemplated that a building could be built in the area where the parking lot is now situated, “and did not create a right to parking that is claimed here,” Ehlke said. A 2007 easement agreement, he said, also did not expressly confer parking rights in that area to Market Square’s owner or tenants.

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