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April 2014

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Pabst Farms sues city for $20 million

Lawyers for Pabst Farms Co. filed a claim against the City of Oconomowoc on Thursday morning seeking $20 million in damages as a result of Common Council's denial of a land division and conditional-use permit for a Kwik Trip gas station and car wash.

The council voted down the requests July 16 on a 5-3 vote. Aldermen Mike Miller, Cathleen Slattery, Bob Morgan, Jim Larsen and Tom Strey voted no. Aldermen Dave Nold, Jim Preston and Rich Allen voted yes on a request for the certified survey map (CSM) to divide a lot and a conditional-use permit (CUP) necessary for operation of the gas station.

On Aug. 14, the law firm representing Pabst Farms Development — DeWitt, Ross and Stevens — filed a lawsuit in Waukesha County Circuit Court seeking to reverse the votes. The city has 20 days to respond to the lawsuit.

Pabst attorney Jon Axelrod said Thursday that the city has 120 days to respond to the most-recent claim to "avoid spending millions of taxpayer dollars."

"I would hope they (Common Council) would reconvene and reverse this," said Axelrod.

Attorney Joe Wirth of the Piper and Schmidt Law Firm is representing the city on the first suit and said Thursday he would likely handle this claim as well.

Wirth said he plans to file an answer to the lawsuit in Waukesha County Court within a week, but could not comment on the claim because he had not seen it yet.

The claim states that the city breached its developer's agreement with Pabst Farms by not allowing the Kwik Trip development.

It points out that the tax incremental financing district created by the city for the Pabst development has been successful and was paid off early and even is donating extra tax increment to a failing TIF in the downtown area.

It notes that Pabst Farms is the largest taxpayer in the city and the seventh-largest taxpayer in Waukesha County. And it reiterates statements made in the previous lawsuit citing discrimination and bias against Pabst on behalf of an alderperson who said that anything in Pabst must have "blue ribbon" class before voting no.

"The city council really acted in an irresponsible fashion," said Axelrod, adding that using terms "blue ribbon class" to determine a vote "is not an appropriate function of government."

The claim states, "The 'blue ribbon class' standard that the Common Council appears to have applied against Pabst Farms is wholly lacking in any legal authority. The city has no basis for applying any special standard exclusively against Pabst Farms. The Common Council's apparent effort to handpick the types of retail establishments it deems rise to a 'blue ribbon class' is a classic example of government run amok by micromanaging development and unduly interfering with free enterprise."

The claim further states that the council's behavior is a breach of the Wisconsin Constitution, violating Pabst Farms' due process rights.

The claim seeks damages for the failed land sale to Kwik Trip, the cost of gaining approvals from the Plan Commission, Architectural Commission and city staff for said development, and the potential loss of new investors in Pabst Farms who may have backed away after the council's action in rejecting the Kwik Trip plan.

"Seeing this result and knowing the public hostility toward Pabst Farms on the part of some of the city's public officials, other potential partners, which otherwise would have worked with Pabst Farms in bringing further retail establishments to the city, will likely back out of such development projects," said the claim.

If the city fails to meet the 120-day deadline on the claim or the 20-day claim on the lawsuit, then the developer can move ahead with the appeal and add the damages to the lawsuit, Axelrod said.

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