Zoning Board of Appeals 06-1994STATE OF WISCONSIN CIRCUIT COURT WAUK_ESHA COUNTY
BRANCH IV
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STATE EX REL., CITY OF MUSKEGO
PLAN COMMISSION, MATTHEW G.
SADOWSKI, DIRECTOR OF PLANNING D E C I S I O N
AND ZONING FOR THE CITY OF
MUSKEGO and CITY OF MUSKEGO;
Petitioner,
vs.
BOARD OF APPEALS FOR
THE CITY OF MUSKEGO,
CASE # 94-CV-0616
STATE CODE # 30707
Respondent.
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The Petitioners, City of Muskego Plan Commission (Plan
Commission), Matthew G. Sadowski, Director of Planning and
Zoning for the City of Muskego, and the City of Muskego (City)
bring this action to review a decision of Board cf Appeals
for the City of Muskego (Board of Appeals) a;:iich granted a
conditional use permit to "Ronnie's Mobil" for a 20-car used car
lot in the City.
The Petitioners challenge the action c_` the Boar-4 of
Appeals on two grounds:
(1.) That the Board of Appeals does n- have j,:risdiction
to grant conditional uses because the City ::as granted exclusive
authority for the granting of conditional uses to the plan
commission; and
(2.) That, even if it had jurisdictio-:, the Board of
Appeals acted arbitrarily and capriciously by cranting the
-1-
permit when there was insufficient facts to support the action.
The court agrees with the Petitioners on both issues.
Both parties agree that a municipality may, by ordinance,
grant preemptive and exclusive right to the plan commission to
grant conditional uses. Town of Hudson v. Board of Adjustment,
158 Wis 2d 263, and Sec. 62.23(7)(e)1 Wis. Scats.. The Board of
Appeals argues that the City has not authored such enabling
legislation. The Board of Appeals rely on the general
provisions of Sec. 3.08 of the City's code which allows appeals
of the decisions of the Plan Commission to them. The Board of
Appeals alleges that they have authority to grant the
conditional use permit because their powers as defined in Sec.
3.08(2) (D) and (G) authorize them to take s,,;ch action. lrz
support, they emphasize the following code language:
"2. To hear and decide special exceptions
to the terms of this ordinance upon which such
board is required to pass under this ordinance."
(Emphasis supplied by Respondent.)
"3. To authorize upon appeal in specific cases
such variances from the terms of this crdinance
as will not be contrary to the public interest,
where owing to special conditions a literal
enforcement will result in practical difficulty
or unnecessary hardship_ so that the spirit of
this ordinance shall be observed, public safety,
and welfare secured, and substantial justice done."
(Emphasis supplied by Respondent.)
-2-
"G. Enforcement of Decision: In exercising the
above -mentioned powers, such Board may ... issue
or direct the issue of a permit provided that no
such action shall have the effect of permitting
in any district a use prohibited in that district;
of rezoning; of granting a conditional use or
special exception where such grant is not
specifically assigned to the Board for determination
under this ordinance..." (Emphasis supplied by
Respondent.)
The Board of Appeals ignores the clear statement of Sec.
3.08(2)(G) of the Code which states:
"G. Enforcement of Decision: In exercising
the above -mentioned powers, such Board may ...
issue or direct the issue of a permit, provided
that no such action shall have the effect of
permitting in any district a use prohibited in
that district; of rezoning; of granting a
conditional use or special exception where such
grant is not specifically assigned to the Board
for determination under this ordinance "
(Emphasis by the court.)
The City code does not, in any section of the code
"specifically assign to the Board (of Appeals) the determination
"of the granting of conditional uses or the review of the same
by appeal."
Likewise, the court finds, even given the right to grant
the conditional use, the Board of Appeals action herein was
arbitrary and unreasonable and not supported by the evidence.
The Board of Appeals herein exercised its will and not its
judgement. The Board of Appeals failed to address the concerns
of the City and the Plan Commission in their approval.
-3-
The Board of Appeals was predisposed to approve this
conditional use. A review of a memorandum of the Board of
Appeals action dated December 5, 1993 (wherein the Board of
Appeals denied the property owner's request for a 40-car lot)
states:
"If the Plan Commission and Mr. Fohr cannot
come to an agreement on a lesser quantity
of vehicles at this site, and Mr. Fohr feels
that he can prove the Plan Commission acted
incorrectly, the Board has instructed Mr.
Fohr that they would be receptive to waiving
the filing fee for a future appeal on this
matter."
The Board of Appeals, in their approval, did not find that
the Plan Commission had "acted incorrectly".
Although neither party has raised the issue, it would
appear that this request was for an expansion to an existing
conditional use permit. That fact does not in any way alter the
findings of this court.
Accordingly, the action of the Board of Appeals in granting
the conditional use is overturned. The attorney for. the
Petitioners shall prepare Findings of Fact, Conclusions of Law
and Judgment in accordance with this decision within twenty (20)
-4-
days.
Dated this day cf- January, A.D., 1995.
BY THE COURT:
HW. PATRZCK-L : filMkX
IRCUIT JUDGE, BRANCH IV,
WAUXESHA COUNTY
-5-
i=aILE16"A
IN CIRCUIT COURT
STATE OF WISCONSIN--------CIRCUIT-COURT DUKES
Jw�1tA-COUNTY
----------------------------- F 1 -------
STATE EX REL, CITY OF MUSKEGO WAUKESHA CO., WISCONSIN
PLAN COMMISSION, MATTHEW G. CYNTHIA S. ERNST, CLERK
�SADOWSKI, DIRECTOR OF PLANNING
AND ZONING FOR THE CITY OF FINDINGS OF FACT
MUSKEGO and CITY OF MUSKEGO, & CONCLUSIONS OF LAW
Petitioners,
-vs- Case #94-CV-616
:BOARD OF APPEALS FOR
,THE CITY OF MUSKEGO, State Code #30707
Respondent.
' This action having been commenced by petitioners filing a
i
'Petition for Writ of Certiorari, a Writ of Certiorari having
been entered by the Court, a Return to the Writ of Certiorari
having been filed and the petitioners and respondent having
11filed Briefs pursuant to the Court's briefing schedule;
1' And said matter having been duly submitted to the Court on
;the records, files and proceedings herein and the Court being
:now sufficiently advised in the premises and having entered a
written Decision dated January 13, 1995, I hereby make and file
ithe following Findings of Fact and Conclusions of Law in said
�I matter, to -wit:
FINDINGS OF FACT
1. The municipality, by ordinance, may grant preemptive
and exclusive right to the Plan Commission to grant conditional
uses.
2. The City of Muskego ordinances have granted said
preemptive and exclusive right to the City of Muskego Plan
Commission.
3. That as the Plan Commission has the preemptive and
exclusive right to grant conditional uses, the Board of Appeals
action in this case was outside of its jurisdiction.
ARENZ. MOLTER,
MACY & RWFLE. S.0
720 N EASi AVENUE
P O BOA -34e
w AliKES..A WI 53PS713491
414 S48.34G
4. That even if the Board of Appeals had jurisdiction,
the Board of Appeals action in this case was arbitrary and
lunreasonable and not supported by the evidence.
5. The Board of Appeals failed to address the concerns
r
IFof the City of Muskego and of the Plan Commission.
f6. The Board of Appeals was predisposed to approve this
conditional use.
7. The Board of Appeals did not find that the Plan
Commission had acted "incorrectly".
8. The fact that the request was for an expansion of an
existing conditional use permit in no way changes the findings
iof this Court.
From these facts, I find as
I CONCLUSIONS OF LAW
1. That the Board of Appeals does not have jurisdiction
Fto grant conditional uses because the City of Muskego has
I
lgranted exclusive authority for granting of conditional uses to
the Plan Commission; and
!' 2. That even if the Board of Appeals had jurisdiction,
I it acted arbitrarily and capriciously by granting the permit
when there was insufficient facts to support the action; and
3. That the decision of the Board of Appeals dated
February 24, 1994 is hereby vacated; that the decisions of the
Plan Commission, including Resolution #P.C. 10-94, are upheld
and in full force and effect.
Let Judgment be entered accordingly.
Dated this b� day of 1995.
I BY HE COURT:
I
PATRICK L. SNYDERp/ Circuit Judge
Molter/State Bar #1013511
ARENZ. MOLTER.
MACY 9 RIFFLE, $ C. — 2
720 N EA57 AVENUE
P O Box .3.0
wAURE$NA Ws 5310713AS
-4 54e-i3.0
ARENZ, MOLTER,
MACY a RiFFLE. S.0
720 H EAST AVENUE
PO bnx ,34e
WAUKESHA. W1 531871340
4,4 548.34G
;STATE OF WISCONSII3 CIRCUIT COURT WAUK%
-----------------INtIRculTUDuRr
STATE EX REL, CITY OF MUSKEGO
�' PLAN COMMISSION, MATTHEW G.���� +w�
SADOWSKI, DIRECTOR OF PLANNING 1
AND ZONING FOR THE CITY OF ;MUSKEGO and CITY OF MUSKEGO, JUDGMENT WAUKtSHA CO., WISCONSiN
Petitioners, CYNTHIA S. ERNST, CLERK
-vs- Case #94-CV-616
i
BOARD OF APPEALS FOR
THE CITY OF MUSKEGO, State Code #30707
Respondent.
---------------------------------------------------------------
1:
This action having been made commenced by petitioners
filing a Petition for Writ of Certiorari, a writ of Certiorari
;having been entered by the Court, a Return to the Writ of
i,Certiorari having been filed and the petitioners and respondent
shaving filed Briefs pursuant to the Court's briefing schedule,
the Court having entered a written Decision dated January 13,
1995 and the Court having made and filed the Findings of Fact
iand Conclusions of Law, wherein Judgment is ordered as
Ilhereinafter adjudged:
NOW, THEREFORE, on motion of Donald S. Molter, Jr., one of
the attorneys for the petitioners,
IT IS ORDERED, ADJUDGED AND DECREED that the petitioners
are entitled to Judgment as follows:
1. That the Board of Appeals does not have jurisdiction
to grant conditional uses because the City of Muskego has
granted exclusive authority for granting of conditional uses to
the Plan Commission; and
k 2. That even if the Board of Appeals had jurisdiction,
it acted arbitrarily and capriciously by granting the permit
when there was insufficient facts to support the action; and
3. That the decision of the Board of Appeals dated
February 24, 1994 is hereby vacated; that the decisions of the
Plan Commission, including Resolution #P.C. 10-94, are upheld
and in full force and effect.
Dated this 3L�-- day of 1995.
S -- 444-�
CLAK OF CIRCUIT C10
Molter/State Bar #1013511 �(�J�
,city 01 �u�hec�0 BUILDING INSPECTION DEPARTMENT
W182 S8200 RAC INE AVENUE • BOX 903 • MUSKEGO, WI 531 50.0903 • (414) 679•41 10
February 28, 1994
Ms. Elke Rea
Mr. Gerald Fohr
S75 W17237 Janesville Rd.
Muskego, WI 53150
Dear Ms. Rea:
The Board of Appeals wishes to advise you that your appeal to
the Plan Commission on January 19, 1994, relative to Resolution
#P.C. 10-94, has been approved by the Board of Appeals with the
following conditions:
1. 15-20 cars maximum, including prep cars at this location.
2. A period of no more than 2 years.
3. Proper arrangements must be made for car wash enterprise
to maintain traffic on your property.
4. Location of used cars must be asphalted.
5. The lot must maintain vehicle offset equal to or lesser
than facade on building on Highway L.
You are further advised to contact the Planning Commission to
obtain a site plan approval and your Conditional Use Grant
updated.
Sincerely,
Susan J. Schroeder
Board of Appeals
Recording Secretary
61" a/ fine �edid¢n�iaC, _inciusfrics! and kccreufionaL .}acili�i¢s
CITY OF MUSKEGO
BOARD OF APPEALS
DATE February 24, 1994
NAME Elke Rea
ADDRESS S75 W17237 Janesville Road
TELEPHONE 679-9999
PROPERTY LOCATION ON WHICH VARIANCE IS REQUESTED
ADDRESS S75 W17237 Janesville Road
SUBDIVISION LOT BLOCK
TYPE OF ZONING B-3
VARIANCE REQUESTED: Appealing the decision of the Plan
Commission per Section 17:3.08(1). The Plan Commission on
January 19, 1994, relative to P.C.#10-94 voted to deny request
to expand.
REASON FOR VARIANCE REQUEST:
Petitioner wants approval to display 20 cars, current approval
allows 3 cars for sale at any one time at this site.
80.00 FEE TO BE PAID AT TIME OF APPLICATION
DATE PAID Fee Waived RECEIPT NUMBER
DECISION OF THE BOARD OF APPEALS
CHAI RN
VICE-C
MEMBEF
MEMBEF
MEMBEF
FIRST
SECONL
AN
APPROVED
DENIED
HAIRMAN
ALTERNATE
ALTERNATE
Secretary�n%-
Date of
Cit
BOARD
ou�heo
-MUSKEPO--
OF APPEALS
BUILDING INSPECTION DEPARTMENT
W182 58200 RACINE AVENUE • BOX 903 • MUSKEGO, WI 53150-0903 • (414) 679-41 10
CITY OF MUSKEGO BOARD OF APPEALS MINUTES HELD ON FEBRUARY 24, 1994.
Chairman Fohr called the meeting to order at 7:30 P.M.
PRESENT: Chairman Gerald Fohr, Mr. Lloyd Erno, Mr. Terry O'Neil,
Mr Dan Schepp, Mr. Don Pionek.
ABSENT: Mr. Darryl Rowinski.
MINUTES: Mr. Terry O'Neil made the motion to accept the minutes of
the January meeting as presented. Mr. Lloyd Erno seconded. Upon
voice vote, motion carried. Chairman Fohr made the statement that
he had received a copy of the letter of resignation from Mr. Tom
Berken and that Mr. Berken will be missed by his fellow board
members. Chairman Fohr then transfered control of the meeting to
Vice Chairman Pionek and excused himself from the chair due to his
association with Appeal #6-94.
APPEAL 06-94 - Elke Rea, S75 W17237 Janesville Road, Muskego,
Wisconsin 53150, Mr. Gerald Fohr appeared requesting an appeal to
the decision of Plan Commission per Section 17:3.08(l). The Plan
Commission on January 19, 1994, relative to Resolution #P.C.10-94,
voted to deny a request to expand the current Conditional Use
Grant. Petitioner wants approval to display 20 cars, current
approval allows 3 cars for sale at any one time at this site.
Vice Chairman Don Pionek administered an oath upon Mr. Gerald Fohr,
Mayor Dave De Angelis and City Planner Matt Sadowski.
Mr. Jerry Fohr stated he only wants to be treated fairly, he wants
the same considerations as other used car dealerships in Muskego
are afforded. Mr. Fohr stated he would be satisfied with a two
year sunset clause at this location, he just wants an opportunity
to have his business get a fair start at this location.
Mr. O'Neil asked for an explanation on how exactly a "sunset
clause" would work. Mr. Erno stated it would allow a person to get
a business going. Mr. Erno stated in the Conditional Use Grant it
would be stated Mr. Fohr could have a specific number of cars at
that location for a very specific amount of time. After that time,
there would be no extension. Mr. Fohr stated he felt that would be
very fair.
Mr. Fohr stated he has tried to be reasonable, he has lowered his
original request from 40 down to 20 cars. He explained he would
not be any closer to Highway L than he is now. This would be a low
keyed operation, no banners, no balloons, and no painting on the
cars.
{_ify o1 Jine and Kacreationa Jacibi"
CITY OF MUSKEGO
BOARD OF APPEALS
Page 2
Mr. Erno questioned where potential customers would park their
private vehicles. Mr. Fohr stated they would park on his lot
parallel to the used cars for sale.
Mr. Pionek asked how many cars presently there are for sale on the
lot. Mr. Fohr stated there are currently six cars for sale because
Mr. Dykstra said while the appeal was being processed more than the
three provided for in the Conditional Use Grant was allowed.
Mr. Fohr described to the members where the 20 cars would be
parked. He also stated he would asphalt the area where the cars
were to be parked.
City Planner Matt Sadowski explained the City could revoke the
Conditional Use Grant for chronic violation.
Mayor De Angelis explained he was requested to appear at this
hearing by Planning Commission, and he is representing their
opinion. The Planning Commission feeling is this site is
designated as a gas station and not a used car lot. They feel
there are three supplemental businesses located at this site, (a
car wash, a minimart and a used car lot) and this site is not
conducive to that type of operation.
Mr. Erno strongly feels that Planning Commission should give a new
businessman a break, and that this will not be a permanent location
for this operation. Mayor De Angelis stated this is not the place
and Plan Commission is concerned about a mushroom affect and the
Parkland Mall and the 76 Gas Station could come forward and ask to
sell used cars. They are extremely concerned about the ingress and
egress on to Lannon and Highway L which are already congested. Mr.
Fohr stated there was a turn lane staked out last year. Mayor De
Angelis stated yes, there are plans for a turn lane, widening the
road.
Matt Sadowski stated that the Board of Appeals needs to look at
this situation as the Plan Commission sees it; 1. that Janesville
Road will become another 27th Street with all its used car lots; 2.
how the parked cars for sale would force cars going to the car wash
onto Lannon Road, a public street. This would encourage problems
by adding car sales. The purpose of Plan Commission is to
internalize traffic.
Mr. Pionek asked City Planner to explain which zoning allowed used
cars for sale. Mr. Sadowski stated a B3, with a Conditional Use
Grant, a car lot was allowable.
CITY OF MUSKEGO
BOARD OF APPEALS
Page 3
Mr. O'Neil questioned if the concern of the Planning Commission was
a used car lot mushroom affect on this area. Mr. Sadowski stated
yes, that was a concern.
Mr. Schepp did not believe a mushroom affect would occur. He feels
people come to associate a gas station with used car lots.
Mayor De Angelis strongly believes a mushroom affect would prevail.
Mr. Pionek stated used car lots are not attractive. But why would
Plan Commission vote against this location? Because of the fact
the Conditional Use Grant would need to be expanded? Why are five
or six cars more than acceptable? Mayor De Angelis stated it
would mean one row of cars, fencing, landscaping and the proper
routing of traffic.
Mr. O'Neil questioned why fencing would be required? Mayor De
Angelis stated to screen off customer traffic, towed vehicles and
worked on vehicles. Other prep vehicles would be in back or inside
the garage.
Mr. O'Neil questioned why Highway L and Lannon less appropriate
than surrounding areas in community. Mayor De Angelis stated main
restriction is limited site ingress and egress; and the
inappropriate aesthetics for this corner.
Mr. O'Neil reiterated that if there were to be turn lanes installed
in spring of 1994, why would this site be inappropriate? Mayor De
Angelis stated the traffic the business would create and the nature
of the business.
Mr. Fohr stated in 1963 the Ordinances were adopted and E.J.
Salentine had his dealership started in 1968 and his cars are right
up to the road. Mr. Fohr feels this is a major City of Muskego
intersection.
Mayor De Angelis is not blaming the gas station for the traffic
problems in the City.
Mr. O'Neil asked what Planning Commission's problem is with
expanding this business. Mayor De Angelis stated it is Plan
Commission's opinion there is a stigma on used car lots, they are
inappropriate for our community, it is the nature of the business.
Mr. Erno questioned why this would have to go before Plan
Commission if the Board of Appeals expanded the number of vehicles
allowed. City Planner Sadowski explained the Plan Commission would
have to approve a new site plan which would require fencing and
landscaping. Mr. Erna asked why they would expect such an
CITY OF MUSKEGO
BOARD OF APPEALS
Page 4
investment if this were only temporary?
Mr. O'Neil questioned if the Planning Commission even discussed the
possibility of 5 to 10 vehicles. Yes, however, three vehicles was
the number Planning Commission was willing to allow.
Vice Chairman Pionek read into the record a letter from Salentine
Buick -Pontiac dated February 4, 1994, stating Mr. E.J. Salentine's
objection to the appeal for additional used cars for sale. Mr.
Pionek also read into the record a letter from Northland
Development Company, dated February 16, 1994, from D.J. Cunningham,
stating his objection to the used car lot being expanded.
Mr. O'Neil made the motion to convene into closed session pursuant
to Section 19.85(l) (a) of the State Statutes for the purpose of
deliberating concerning a case which is the subject of a quasi-
judicial hearing; said case being above listed appeal. Mr. Dan
Schepp seconded motion. Upon roll call vote, motion carried
unanimously.
Mr. O'Neil made the motion to convene into open session to render
a decision regarding the above listed appeal. Mr. Schepp seconded,
upon voice vote, motion carried.
Mr. Lloyd Erno made the motion to expand the Conditional Use Grant
for Ronnie's Mobil to 15-20 cars maximum, for a period of no more
than two years. The 15-20 maximum cars are to include prep cars.
Proper arrangement must be made for car wash enterprise to have
traffic remain on site. Also, the lot must maintain vehicle
offset equal to or lesser than facade on building on Highway L.
Black top must be applied where cars are parked. Mr. O'Neil
seconded motion. Upon roll call vote, motion passed unanimously.
Mr. Dan Schepp made the motion to adjourn, Mr. Lloyd Erno seconded.
Upon voice vote, motion carried.
With no other business to come before this board, the meeting was
adjourned at 9:30 P.M.
Respectfully submitted,
SCL 94
Susan J. Schroeder
Recording Secretary
CITY OF MUSKEGO
NOTICE OF PUBLIC HEARING
NOTICE IS HEREBY GIVEN pursuant to Wisconsin State Statute 62.23
(3) 6. that a public hearing will be held at the Muskego City
Hall, W182 S8200 Racine Avenue, at 7:30 P.M., Thursday, February
24, 1994, to consider the following appeals:
APPEAL #6-94 Elke Rea
S75 W17237 Janesville Road
Muskego, WI 53150
REQUESTING: Appealing the decision of the
Plan Commission per Section 17:3.08(1).
The Plan Commission on January 19, 1994,
relative to Resolution Resolution #P.C.
10-94, voted to deny a request to expand the
current Conditional Use Grant.
Petitioner wants
current approval
one time at this
Zoning: B3
NOTICE OF CLOSED SESSION:
approval to display 20 cars,
allows 3 cars for sale at any
site.
PLEASE TAKE NOTICE that the Board of Appeals of the City of
Muskego may convene, upon passage of the proper motion, into
closed session pursuant to Section 19.85 (1) (a) of the State
Statutes for the purpose of deliberating concerning cases which
were the subject of a quasi-judicial hearing; said cases being the
above listed appeals.
The Board of Appeals will then reconvene into open session.
Detailed descriptions are available for public inspection at the
Clerk's office. All interested parties will be given an
opportunity to be heard.
Board of Appeals
City of Muskego
Gerald Fohr, Chairman
Dated this llth day of February, 1994
PLEASE NOTE: It is possible that members of and possibly a quorum of members of other governmental
bodies of the municipality may be in attendance at the above -stated meeting other than the
governmental body specifically referred to above in this notice.
Also, upon reasonable notice, efforts will be made to accommodate the needs of disabled individuals
through appropriate aids and services. For additional information or to request thin service,
contact Jean K. Marenda, City Clerk, at Muskego City Hall, 679-4100.
TXTBOA/NOTICE
CITY OF MUSKEGO
BOARD OF APPEALS
Application for Variance
Subject Property Address: S75 W17237 JANESVILLE RD
Telephone 679-9999 -
Property Zoning: B3 Key # MSKC 2196-952
Petitioner's relationship to property (circle applicable):
owner lessee other
Fees: $80.00
Date inspector denied permit:_
Requesting variance ity per
Section
17;3.08(1)
To allow: REVERSAL OF PLANNING COMMISSION DECISION
ADDITIONAL USED VEHICLES FOR SALE
A literal enforcement of the terms of the above -referenced section
would result in practical difficulty and unnecessary hardship
because:
CANT OPERATE A PROPER USED CAR BUSINESS WITH
V H CLES FOR SALE WHEN ALL OTHER USED CAR LOTS
ARE ALLOWED MUCH MORE VEHICLES FOR SALE
_2
The variance, if granted, will not be contrary to the public
interest and will be in accord with the spirit of the code
because:
ZONING IS PROPER WITH OTHER BUSINESS IN AREA
The variance, if granted, will not adversely affect public safety
or jeopardize public welfare because:
THE EXPANSION OF USED VEHICLES ON LOT WILL MEET OR
EXCEED ALL SET BACKS AND OFF SETS
Page 1 of 2
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