You Can’t Fight City Hall or Certiorari is a Tough Nut to Crack

There’s an old saying – “you can’t fight city hall” which partly stems from the doctrine of sovereign immunity (there’s another old saying – “the king can do no wrong”). While this is not strictly true, it is certainly the case that challenging a municipality’s decision on a matter of local concern will be an uphill battle. The recent case of Mohs v. City of Madison involving the proposed redevelopment of the Edgewater Hotel in Madison is a case in point. As the court noted before beginning its analysis of the arguments, “Wisconsin courts have repeatedly stated that on certiorari review, there is a presumption of correctness and validity to a municipality’s decision.” (quoting Ottman v. Town of Primrose – see previous blog entry for info on the Ottman case).

Nearby landowners, Frederic Mohs and Eugene Devitt, and two limited liability entities, Wisconsin Ave. House LLC and 122 East Gilman LLP (collectively the appellants), challenged the Madison Common Council’s decision to grant a Certificate of Appropriateness, which was required by the Edgewater developers because the Edgewater is in a historical district. However, at the end of the day, the Court noted that the challengers’ main arguments were that the Council shouldn’t have decided it the way it did, and shouldn’t have accepted the credibility of testimony that it found credible. The Court made clear that courts “do not second guess credibility determinations” made by local government intities and courts “are not empowered to question the wisdom” of decisions concerning local issues “like the one made by the (City) Council…”