The City of Fitchburg Plan Commission has recommended denial of a 73-unit senior housing complex on South Fish Hatchery Road, despite threats of a lawsuit from the developer.

The commission unanimously voted against a rezoning request for 2556 S. Fish Hatchery Road Tuesday. The Common Council will consider the proposal at its June 25 meeting.

The commission and council voted against a similar proposal for the site in April, which would have allowed 68 units of housing on the site in a different orientation from that of the 73-unit proposal.

Both bodies had previously voted in favor of the 73-unit proposal at an earlier stage of the development process, known as the general implementation plan. Developer Jacob Klein brought that proposal back for approval in the specific implementation stage because it is the same as was approved earlier.

“I really have some concerns over the process here,” Klein said. “We had a GIP approved, we met the conditions, the SIP was denied.”

The GIP covers big-picture items – site layout, building types and sizes and traffic flow – while the SIP is finer details such as architecture, landscaping and lighting. Typically, GIP approval entitles a developer to complete the project as long as the SIP follows the plan.

Commissioners and residents opposed to the development have cited traffic and a lack of amenities for seniors in the area as concerns. The development would have its exit and entrance only onto Fish Hatchery Road.

Klein noted that his company had widened that ingress and egress area and limited it to right-turn-only when leaving to address concerns expressed at the general implementation stage. He also said staff from Dane County and the City of Fitchburg both had agreed it was a satisfactory change, based on a requirement of that earlier approval.

“It’s very frustrating on a site that’s high-density residential, where the traffic experts have all agreed that the entrance and ingress and egress is satisfactory, that there’s this arbitrary reason that non-traffic experts are holding their hat on to deny a project,” he said.

Klein suggested other reasons people have shown up to meetings for months to speak in opposition.

“This isn’t about traffic one bit. Everybody here knows that,” Klein said. “This is about not wanting low-income people in an all white neighborhood, and that’s a fact.”

He and his attorney suggested a lawsuit could follow if the city denied the rezone, and mentioned a similar case he was part of in the City of New Berlin. Klein said the U.S. Department of Justice eventually joined that lawsuit on his side.

Commissioners did not appreciate that.

“I don’t like being threatened, and I don’t know why you think a tactic like that would be successful,” said commissioner Ed Kinney.

The Common Council is already facing a lawsuit from residents over the process of approval of the general implementation plan last October. That meeting, which residents said violated open meetings laws, included a vote to rescind a June 26 decision against the rezoning to allow the development.

Two alders requested reconsideration of the project to get it on the agenda after an email from then-Mayor Jason Gonzalez asked if anyone would sponsor it. Alds. Julia Arata-Fratta (Dist. 2) and Dorothy Krause (D-1) volunteered to do so on Oct. 4, the same day the agenda was posted for the Tuesday, Oct. 9, meeting, according to the lawsuit.

Contact Scott Girard at and follow him on Twitter @sgirard9.