Brothers Bar & Grill: Owners of Brothers Bar & Grill file suit against UW Regents over unfair condemnation

Contact: Mike Wittenwyler, Attorney

Godfrey & Kahn, S.C.

(608) 284-2616 office; (608) 358-1800 mobile

wittenwyler@gklaw.com

Family-owned business contends proposed UW project does not meet needs test for condemnation; Regents failed to negotiate in good faith

A family company that owns Brothers Bar & Grill has filed a lawsuit against the UW System Board of Regents over an unfair attempt to condemn their property at 704 University Ave.

Eric and Marc Fortney, who have operated the popular establishment for more than 15 years as part of their family-owned company, filed the lawsuit Tuesday in Dane County Circuit Court. Their lawsuit details the difficulties small business owners face protecting jobs and private property rights when confronted by multiple players pressing for negotiations on behalf of several university-related entities.

“As a family-owned business we believe in fair and honest dealings with our patrons, our business partners and the community,” said Marc Fortney. “We recognize the Board of Regents has the power to condemn property, but the condemnation process contains limits to ensure private property rights are protected and that the extraordinary act of condemnation is truly necessary for a public purpose. In this case, the process has not been conducted in a fair and responsible manner and there is no demonstrated need.”

At issue is a proposal by UW–Madison to build a $43 million School of Music Performance building on the site of Brothers Bar & Grill at the corner of University Avenue and Lake Street. UW–Madison officials have said the proposed project is to be entirely funded by donors. But at this time, the fundraising is incomplete, no architect has been retained and no site plan or building design has been developed. The State Building Commission, which is the approving body for the state of Wisconsin, has not yet been asked to approve it.

Mike Wittenwyler, a partner with Godfrey & Kahn representing the Fortney family companies, said the lack of a definitive timeline for the School of Music project is particularly disturbing given the impact of condemnation on a small business. The School of Music performance hall is not even included in the UW System’s “2009-2015 Six Year Plan” for major projects.

According to the lawsuit, the Fortneys began negotiating with representatives from the Wisconsin Alumni Research Foundation and UW–Madison as early as 2006 to discuss a land exchange that would have allowed Brothers Bar & Grill to preserve jobs and continue operating in a new location. After substantial discussions involving representatives from WARF, as well as Alan Fish and Doug Rose from UW–Madison, the Fortneys received assurances that WARF would pay all costs of the business relocation.

An agreement in principle was reached with WARF and representatives of UW–Madison, stipulating that the bar and grill would not have to vacate the property until a new site was ready for occupancy. After nearly two years of negotiations and agreement on all material terms of the relocation agreement, members of the UW System Board of Regents intervened, informing the Fortneys that the Regents — not WARF or UW–Madison — would have final say on the relocation agreement and that key terms of the agreement would be vetoed by the Regents.

After the Regents intervened, they assured the Fortneys that they were anxious to negotiate an agreement and did not intend to condemn the property. Despite these repeated assurances, the Board of Regents has initiated the condemnation process.

“In order for the Board of Regents to exercise its powers of condemnation, it must demonstrate among other things that the intended public use is necessary, and that it will come to pass,” Wittenwyler said. “Given the uncertain plans and timeline for the music performance project, the proposed taking of this property does not meet these standards. Moreover, we have also alleged in the suit that the Board of Regents has not met its obligation to negotiate in good faith.”

The Fortneys emphasize that this lawsuit is not about the value of the real estate. In fact, the Fortneys note that they have agreed to accept the price offered by the board in its jurisdictional offer in the event they do not succeed with their lawsuit. Instead, the Fortneys are seeking to retain the property and gain a declaration that the board may not attempt to exercise its power of eminent domain until it has established both the necessity and imminence of its public purpose.

Brothers Bar & Grill is one of 15 establishments operated by the Fortney family in university communities throughout the upper Midwest. The Madison location employs 30 and is a popular campus bar known for its proximity to campus sporting events. Marc and Eric Fortney are UW–Madison graduates and operate the company from offices in La Crosse.