The City of Fitchburg Common Council could be facing a lawsuit for an October vote to approve a senior housing development on South Fish Hatchery Road.

A pair of Fitchburg residents filed the suit in Dane County Circuit Court Feb. 5, alleging the council “did not keep within its jurisdiction or act according to law, exercised its will and not its judgment, and based its decision on evidence that did not reasonably support the decision,” as well as that it did not follow the notice and hearing requirements. The Plan Commission had held the required public hearing in June but did not hold a second when it was brought for reconsideration by the council.

The meeting in October included a vote to rescind a June 26 decision against a rezoning to allow the 73-unit senior housing development on South Fish Hatchery Road south of Nobel Drive.

Construction has not yet begun on the development. The plan still needs to come back to both bodies under the development process.

“This is not our last kick at the can tonight, and I hope some of you will appreciate that,” Ald. Tony Hartmann (D-4) said during the October discussion.

During the June meeting, members of the public and alders had said they were concerned about traffic, with the lone exit and entry point off South Fish Hatchery Road.

The lawsuit from David and Cheryl Strassman claims the development could harm the values of nearby properties, including their 2534 Fish Hatchery Road property.

“Plantiffs, as owners of impacted residential property near the rezoned property, are aggrieved by the Common Council’s decision,” the complaint states.

Ald. Anne Scott (Dist. 1) praised the project in June, but voted against at the time because of “reservations about where it’s located.”

After rescinding the 5-2 June vote against the development, the council voted 5-2 in favor of the rezoning in October. Some alders said they could address traffic concerns at that point.

Scott and Ald. Dan Bahr (D-2) changed their votes between June and October. Hartmann was absent in June but voted yes in October, while Ald. Dan Carpenter (D-3) voted no in June but was absent in October.

To get the item back on the agenda, two alders had to request reconsideration of the project. According to the lawsuit, Mayor Jason Gonzalez sent an email asking if any alders would sponsor that, and Alds. Julia Arata-Fratta (D-2) and Dorothy Krause (D-1) volunteered on Oct. 4, the same day the agenda was posted for the Tuesday, Oct. 9, meeting.

According to a 2018 state Department of Justice guide to open meetings laws, application of the law to email correspondence can vary.

“It is likely that the courts will try to determine whether the communications in question are more like an in-person discussion – e.g., a rapid back-and-forth exchange of viewpoints among multiple members – or more like non-electronic written correspondence, which generally does not raise open meetings law concerns,” the guide states.

The lawsuit requests the court reverse the council’s decision, cover costs for the lawsuit and “other relief as the Court determines is just and equitable.”

The Council discussed the lawsuit in closed session Tuesday, Feb. 12, but did not have any conversation in open session on the topic.

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