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CCM20070925-Letter-Definitions LAW OFFICES OF ARENZ, MOLTER, MACY & RIFFLE, S.C. 720 N. EAST AVENUE P.O. BOX 1348 WAUKESHA, WISCONSIN 53187-1348 Telephone (262)548-1340 Facsimile (262)548-9211 Email: dmolter@ammr.net DALE W. ARENZ RICK D. TRINDL DONALD S. MOLTER, JR. ERIC J. LARSON JOHN P. MACY, PAUL E. ALEXY COURT COMMISSIONER R. VALJON ANDERSON H. STANLEY RIFFLE, JULIE A. AQUAVIA COURT COMMISSIONER JOSEPH D. MELENDES May 31, 2007 Via Email Mayor John Johnson CITY OF MUSKEGO P.O. Box 749 Muskego, WI 53150-0749 Mr. Jeffrey Muenkel Director of Planning CITY OF MUSKEGO P.O. Box 749 Muskego, WI 53150-0749 Re: Oschmann/Aud-Mar Rezoning Dear Mayor and Jeff: I have been asked to give my legal opinion as to a question of “precedent” which has arisen concerning the rezoning of the above-mentioned property. This issue was mentioned several times at the public hearing held on May 22, 2007. Per our discussions, I have not done exhaustive legal research concerning this matter as I believe it is more a question of fact than law. My understanding of the basic facts is as follows. If I am incorrect, I would ask that either of you contact me immediately. 1. It is my understanding that the Aud-Mar property is now zoned BL-2 Lakeshore Business District and that a bar, restaurant/supper club has operated there for at least 50 years. It is my understanding that they have very recently closed the business operation, but that the property could be continued to be used as a bar, restaurant/supper club. 2. The property is located on Bass Bay. It is my understanding that this is the only property now located on Bass Bay which is zoned BL-2 Lakeshore Business District and that there is no other business zoning on Bass Bay. 3. If the present zoning is changed as requested, it is my understanding that the Developer would build two single family homes and six condominium units on the property and that the six condominium units would be located within the existing bar, restaurant/supper club building. Some of the neighbors are objecting to the rezoning, particularly the condominium portion, as they feel this would set a “precedent” for future condominium development on Bass Bay. 4. It is further my understanding that the site plan shows conformity with the 2010 Comprehensive Plan, at least in the opinion of the City Planner, in that it calls for a medium density residential development. The general law as to zoning issues is that zoning is a matter of legislative discretion and it is presumed a zoning ordinance is valid and the zoning ordinance will be liberally construed in favor of the municipality. While a Court may differ with the wisdom and desirability of a zoning change, it cannot substitute its opinion for that of the zoning authority and the zoning authority controls in the absence of abuse of discretion, excess of power or error of law. Traditional standards of common law certiorari review are whether the action taken was within the Council’s jurisdiction, whether they acted according to law, whether its action was arbitrary, oppressive or unreasonable and represented its will and not its judgment. I have taken the above general legal analysis of general zoning powers from a recent Wisconsin case, Step Now Citizens v. Planning & Zoning, 264 Wis. 2d 662 (2003). th Attached please find the Websters Dictionary definition of precedent from Websters 9 New Collegiate Dictionary 1983 and the definition of precedent from Blacks Law Dictionary 1979. It appears that the facts of this case are distinguishable from the facts as to any other property on Bass Bay in that: 1. No other property on Bass Bay is zoned business including BL-2 Lakeshore Business District; and 2. There is no other commercial property on Bass Bay other than the Aud-Mar; and 3. That someone could argue that the character of the area is maintained by use of the existing building as condominiums rather than the destruction of said building and building of single family dwellings. In fact, it would appear that if the zoning is changed to allow for the condominiums to be developed in the existing building, that an argument could be made against future zoning on Bass Bay for condominiums and that, in fact, a precedent had been set by allowing the condominiums in this case only to be developed within the existing building and in furtherance of the comprehensive plan eliminating a business property on Bass Bay and allowing for a medium density residential development. If the Council should desire to proceed with allowing this rezoning, it should be careful to set forth the facts in its decision distinguishing this property so that it will be more difficult in the future for another property owner on Bass Bay to successfully argue that he should be allowed to develop condominiums as the Oschmann property was allowed that type of development. Sincerely, ARENZ, MOLTER, MACY & RIFFLE, S.C. Donald S. Molter, Jr. DSM/pw Attachments cc: Ms. Janice Moyer, Clerk (Via Email) Ms. Jennifer Sheiffer, Administrator (Via Email) Definition of Precedent referred to in May 31, 2007 letter from Atty. Molter th Webster’s 9 New Collegiate Dictionary 1983 1 : an earlier occurrence of something similar 2 a : something done or said that may serve as an example or rule to authorize or justify a subsequent act of the same or an analogous kind <a verdict that had no precedent> b : the convention established by such a precedent or by long practice Black’s Law Dictionary 1979 An adjudged case or decision of a court, considered as furnishing an example or authority for an identical or similar case afterwards arising or a similar question of law. Courts attempt to decide cases on the basis of principles established in prior cases. Prior cases which are close in facts or legal principles to the case under consideration are called precedents. A rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.