Loading...
Zoning Board of Appeals 06-1994STATE OF WISCONSIN CIRCUIT COURT WAUK_ESHA COUNTY BRANCH IV ---------------------------------------------------------------- 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. ---------------------------------------------------------------- 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 TXTFORW BOAVAR 4-8-93 y70 l� +S � •� g � _ J < p O CD e O rr n V 6 0 1A� n paw K ♦ P �• g N g w n n c_ gyp= a� a N uo to I 1 d mvp O g N � a o �1 i Id � F I \ 4 a S V 4l' a D D } j o . a a�0 U qu a� o K AN cr " } w o . b a S v m — b3AN37 o E 3nitfa moc N +ooi' ppoa � • � x'� � ! ? Cj w G O -31 _ 1-13-9 w -pRfVE 41 11 'i w w m D � u S a n`a OPT