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Popular bar Brothers will battle the Board of Regents to maintain its place on University Avenue.[/media-credit]

The company that owns Brothers Bar & Grill filed a lawsuit against the University of Wisconsin Board of Regents Tuesday, alleging unfair condemnation procedures over their location at 704 University Ave.

Brothers’ owner Fortney LLP has been negotiating with UW, the Wisconsin Alumni Research Foundation and the Board of Regents at different points over the past several years for the property, which the university plans to use as the site for a new music performance facility.

The block was first marked for development by the university in 2005. The Board of Regents granted the university eminent domain — which allows government entities to obtain private property for public use without the owner’s consent — in 2008, after which UW purchased the adjoining property at 728 University Ave.

A final agreement on the Brothers property was not reached until last month, when the university extended a jurisdictional offer of $2.1 million, according to a UW System statement.

Now, Fortney LLP is alleging the Board of Regents has not negotiated in good faith and a lack of a detailed timeline for the building’s completion disqualifies it from falling under eminent domain laws.

“We’re not challenging the university’s right to condemn our building; we’re saying they’re premature in their actions,” Fortney LLP attorney Mike Wittenwyler said. “In the meantime they are going to shut down a business that is a part of a vibrant downtown community.”

Wittenwyler said as a part of the original negotiations, it was agreed the bar would not be out of business for a day. The bar would be given time to find and move to a new location with costs being covered by WARF.

However, when the Board of Regents took over negotiations and began eminent domain procedures last fall, agreements like this were dropped. Papers served to Brothers approximately three weeks ago require the business to vacate the building by March 23, co-owner Marc Fortney said.

“We’ve worked hard for 15 years to create value for our employees and the students and alumni who patronize our place, and now that’s just gone,” Fortney said. “They haven’t negotiated with us. We’ve been treated poorly and unfairly.”

UW System spokesperson David Giroux said the exercising of eminent domain — which has not been used by UW since the 1960s — should not come as a surprise to the establishment, as the timeline for its acquisition has been in place for quite some time.

“We’re right where we should be in the process. [The use of eminent domain] is fairly unusual, but as far as the building’s process goes, we’re at the point at which we should be acquiring the property on which we should be building,” Giroux said.

He responded to concerns about a lack of a full plan for the building by describing it as a “chicken and egg” problem, where further plans cannot proceed until the university owns the full parcel of land.

The 204 University Ave. property was valued by the city of Madison at $682,000 in 2009.

Fortney said the $2.1 million deal would pay for the building’s land and mortgages but would not be sufficient to fund a relocation of the business.