Brothers Bar
The owners of the popular campus-area bar Brothers, at the corner of University Avenue and Lake Street, are suing the UW Board of Regents to block the university from acquiring their property through eminent domain. Michelle Stocker/The Capital Times

Raising questions about the extent of the university's power to seize private property, the owners of a campus-area tavern are suing to stop the UW Board of Regents from condemning their bar.

The Regents have moved to take the property where Brothers Bar & Grill sits at 704 University Ave. in order to build a $43 million UW-Madison School of Music performance hall.

"We're a family, a small business," said Marc Fortney, who owns the bar with his brother, Eric. "The reality is, who's next? Where is the university going to expand to? They're landlocked between the lake and what, business owners? Does this happen again next time?"

By law, the University of Wisconsin System has the power to condemn property if its use is in the public interest.

But university officials say they rarely use eminent domain -- the last time was in 1990 to acquire property for Grainger Hall -- and resorted to it in this instance because they couldn't negotiate a fair market price with the Fortneys.

"Our job is to be good stewards of the public's money," said Regent Jeffrey Bartell. "We can't justify paying public funds substantially in excess of fair market value."

According to the lawsuit, the Wisconsin Alumni Research Foundation (WARF) originally offered to purchase the property in early 2007 for around $2 million and to pay for the cost of Brothers' relocation.

Somewhat reluctantly, the Fortneys agreed to negotiate on a sale to the university, the lawsuit states.

The Fortneys and WARF found a new location for the bar at 438 N. Frances St. and the university made an offer on that property, according to the lawsuit.

But when the relocation agreement was nearly complete, the UW Board of Regents voted in June of 2008 to instead use eminent domain to take Brothers, the lawsuit states, at a price to be determined later. Last month, the university extended an offer of $2.1 million, but its offer to pay relocation costs wouldn't cover all of Brothers' expenses, said Mike Wittenwyler, an attorney for the Fortneys.

The bar owners agreed to accept that price if the lawsuit fails.

Fortney said he doesn't know why the Regents decided to use eminent domain.

But Bartell said the Board of Regents is ultimately responsible for property acquisitions -- not WARF -- and that the bar owners were asking far more than the 2008 assessed market value of $1.25 million.

At issue in the lawsuit is whether the property in question is necessary for an intended public use, as required by law.

Plans for the music performance hall are still in the early stages, the lawsuit states. There is no firm timeline for the project and not all the funding has been secured.

"What we're challenging them on more than anything else is, where is the true public necessity?" asked Wittenwyler.

But Bartell said that the university has acquired every other parcel of land on the block.

"An architect has to know a building site before drawings can begin," he said.