A Dane County judge on Monday again turned aside a request to temporarily block the use of a vacant commercial building near East Towne as a men’s homeless shelter, ruling that the city of Madison does not need the approval of a local committee to open a shelter in the building near East Towne.
Dane County Circuit Judge Valerie Bailey-Rihn said, however, that the city must get the committee’s approval to make alterations to the building, and that is something attorneys representing the city said in court Monday that they plan to do.
Last month, Circuit Judge Valerie Bailey-Rihn declined to block the sale of a building at 2002 Zeier Road, which once housed Gander Mountain sporting goods and more recently a Savers store, from owner BIP Enterprises to the city of Madison.
The Madison City Council voted Oct. 6 to buy the building for $2.6 million to use temporarily as a men’s homeless shelter to replace the current temporary shelter at the former Fleet Services building on North First Street, slated to become the Madison Public Market.
A lawsuit brought by a neighboring business, Moving to the Music dance studio, 2001 Zeier Road, alleged that BIP and the city failed to seek approval for the plan from a three-person Design Committee specified in a 1987 covenant document that was created when the land was initially sold for development by Raymond and Loraine Zeier.
Loraine Zeier and her son, Dennis, are on the Design Committee, along with a city representative who is, for now, interim Urban Design Commission secretary Kevin Firchow.
Last month, Bailey-Rihn agreed with BIP that as the seller of the property, it was not required to seek Design Committee approval. Moving to the Music then amended its lawsuit to add the city of Madison as a defendant. Since then, BIP has been dismissed from the lawsuit.
That left the city. Moving sought to bar the city from changing the use of the Zeier Road property without Design committee review and approval, or using the property that is in any way inconsistent with the covenants and restrictions set in the 1987 document.
The city argued that its proposed use of the property doesn’t require Design Committee approval because under the terms of the 1987 document, the property is released from Design Committee approval with respect to use after a previously-approved use for the building has been in place for more than five years.
The Gander Mountain store, the first to occupy the building, operated there for more than 15 years.
Eric McLeod, attorney for Moving to the Music, argued that the language in the document instead means that the five-year period refers to the five years immediately preceding the new use for the building. Because the building has been vacant since 2018, the exception the city relies on doesn’t apply and Design Committee review is required.
Bailey-Rihn agreed with the city’s interpretation.
“I think it’s very clear at least in this court’s mind that the property has been used as a Gander Mountain” for more than five years, she said, “so it doesn’t need Design Committee approval.”
But, she added, the city concedes that alterations to the building will require the Design Committee approval, which the city’s lawyer, John Laubmeier, said in court that the city would seek.
With that, Bailey-Rihn ruled Moving to the Music is unlikely to succeed on the merits of its case, one of the requirements necessary to get a ruling temporarily blocking the city from using the building as a homeless shelter.
McLeod declined to comment after the hearing.
“I think the judge’s ruling speaks for itself,” he said.