Wauwatosa Common Council Rejects Proposed Mexican Restaurant

WAUWATOSA, WI—The Community Affairs Committee will discuss factors supporting the denial of conditional use permit for a Mexican restaurant during its meeting on Tuesday.

Gabbi and Betsi Zierath, the sisters behind Elm Grove's popular restaurant Zisters, proposed a modern and trendy Mexican restaurant called Hermanas to replace Thirsty Duck, 11320 W. Bluemound Rd. which closed in 2020.

The Wauwatosa Common Council denied the proposal in a 13-3 vote during the March 16 meeting.

There were concerns among Council members regarding the potential inadequacy of parking and the condition of a fence at the back of the property.

Ald. Nancy Welch who was one of the members who voted against the proposal spoke during the March 16 meeting.

"I think, all too often, we become so fixated on approving things that we forget why we review these uses in the first place," Welch said.

"It's to look at the impacts that the business might have on the surrounding neighborhood and to do what we can to minimize those impacts so that we can ensure that this new business does become a beneficial part of the neighborhood."

According to a letter from Alan Kesner, city attorney, in response to a 2017 change in state law, the common council must pass a resolution that specifically states, on the record, the substantial evidence supporting its reasons for denial of the conditional use permit.

On March 8, the Plan Commission had held a public hearing on the item. Only the applicant/business owner appeared at the public hearing in favor of the proposal, with nobody appearing in opposition.

There were concerns about parking and noise.

The applicant responded by informing the Commission that this restaurant would likely have much lower traffic and parking volume due to the different nature of the concept being proposed, indicated that the fence issue would be fixed, and committed to addressing any parking issues in the future should they arise.

The applicants Daniel, Betsi, and Gabbi Zierath retained an attorney, Davis & Kuelthau, s.c, and a letter was attached to the meeting packet.

"The Zieraths planned a substantial renovation at the site and have been working to create an upscale menu featuring Mexican cuisine. At the March 16, 2021, Common Council meeting, Ald. Jim Moldenhauer – as one of the Common Council members appointed to the Plan Commission – moved to adopt the Plan Commission recommendation to approve the Hermanas CUP. However, the Common Council voted 3-13 on the motion to approve.

During our recent phone conversation, we discussed the procedural posture of the Hermanas CUP application following that particular action by the Common Council, and given the statutory requirements established by 2017 Wis. Act 67. In short, it appears that we agree that a failed motion to approve does not fully satisfy the legal standards where any decision to deny a CUP must be supported by substantial evidence. See § 62.23(7)(de)2.b., Wis. Stats.

Without addressing at this time whether the Hermanas CUP should have been approved or denied, we respectfully request a review of the CUP record by the appropriate committee on March 30th, followed by any necessary further proceedings before the Common Council at its next meeting on April 6, 2021."

City staff, according to the meeting packet, recommended that the Committee "articulate the substantial evidence supporting denial of the conditional use permit application" and forward that information to the Common Council for action at its April 6 meeting.