The Town of Waukesha Board will once again consider and possibly take action regarding Title 4 of the Town ordinance relating to the hours of operation for the approved Walgreens at its Thursday night meeting.
The Town Board voted 3-2 this summer against giving a proposed Walgreens permission to stay open 24 hours a day at the corner of Sunset Drive and Highway X.
At the Town's Aug. 22 meeting, Mark Lake, who is representing MRED-Cummings, part owners of the parcels, said the limited 24-hour rule is not good for Walgreens.
He said Walgreens would like the ability to have the option for a 24-hour store if the manager should choose to use that schedule.
He said the board is doing a disservice to the integrity of Walgreens.
After Chairman John Marek asked Lake if the Walgreens/Aldi project would proceed forward without the 24-hour access, he said no.
Marek then directed Plan Commissioner Robert Flanagan to review the issue under Title 4.
Title 4 states "any person aggrieved by an administrative determination of the Town Board or a board, commission, committee, agency, officer or employee of the Town of Waukesha or agent acting on its behalf may have such determination reviewed."
Under Title 4, Flanagan overturned the decision and said the Town Board does not have the capacity to alter or modify the plan of operation as submitted by the petitioner.
But Supervisor Joe Banske said after the Oct. 17 meeting that at the time of Marek directing Flanagan to conduct the review, Marek had been advised by Hector de la Mora, the town's attorney, that accepting the review was unlawful.
As a result, at last week's meeting, the Town Board, at the request Banske, heard the legal opinion from attorney William Dineen of Crivello Carlson on the issue.
His opinion was the same as de la Mora's — that Title 4 was not an avenue for review and that the board's decision on hours of operation (from 6 a.m. to 10 p.m.) is in effect. Dineen said it should have gone to the board of zoning appeals, instead.
"I don't think the Town Board decision to impose hour limits is reviewable under Title 4," said Dineen, who said he believes it was used improperly in this case.
After the meeting, Banske said "it appears that the only way to tend to that risk is to take court action to obtain a judicial order" and that this situation could have been avoided if the town attorney's advice was taken.
The board meets at 6:30 p.m. Thursday at Town Hall, W250 S3567 Center Road.
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