Archive for the ‘Zoning and Land Use’ Category

You Can’t Fight City Hall or Certiorari is a Tough Nut to Crack

Friday, November 18th, 2011

There’s an old saying – “you can’t fight city hall” which partly stems from the doctrine of sovereign immunity (there’s another old saying – “the king can do no wrong”).  While this is not strictly true, it is certainly the case that challenging a municipality’s decision on a matter of local concern will be an uphill battle.  The recent case of Mohs v. City of Madison involving the proposed redevelopment of the Edgewater Hotel in Madison is a case in point.  As the court noted before beginning its analysis of the arguments, “Wisconsin courts have repeatedly stated that on certiorari review, there is a presumption of correctness and validity to a municipality’s decision.”  (quoting Ottman v. Town of Primrose – see previous blog entry for info on the Ottman case).

 Nearby landowners, Frederic Mohs and Eugene Devitt, and two limited liability entities, Wisconsin Ave. House LLC and 122 East Gilman LLP (collectively the appellants), challenged the Madison Common Council’s decision to grant a Certificate of Appropriateness, which was required by the Edgewater developers because the Edgewater is in a historical district.  However, at the end of the day, the Court noted that the challengers’ main arguments were that the Council shouldn’t have decided it the way it did, and shouldn’t have accepted the credibility of testimony that it found credible.  The Court made clear that courts “do not second guess credibility determinations” made by local government intities and courts “are not empowered to question the wisdom” of decisions concerning local issues “like the one made by the (City) Council…”

Conditional Use Can Become Nonconforming Use

Friday, July 8th, 2011

In a recent appeals court ruling recommended for publication, Yassin Hussein and Germantown Auto Sales, LLC, v. Village of Germantown Board of Zoning Appeals, the court ruled that a municipality cannot enforce a conditional use permit issued prior to a zoning ordinance amendment which removed that use as a conditional use, and that the use continues as a legal nonconforming use.

Germantown Auto Sales had been issued a conditional use permit for an auto sales, repair and service station in 1973.  In 1988 the Village of Germantown revised its zoning code, eliminating auto sales as a conditional use in the zoning district.  In 2009, Germantown Auto Sales sought Village permission to increase the number of cars parked on the property beyond what the 1973 conditional use permit allowed.  The Village denied the expansion, and demanded that Germantown Auto Sales come into compliance with its 1973 permit.

In a certiorari action, the circuit court ruled that Germantown Auto Sales had a legal nonconforming use, and must live within the bounds of legal nonconforming uses, but that the Village could not seek to enforce the conditional use permit from 1973.  The appellate court affirmed the circuit court decision.

The result for Germantown Auto Sales is less than clear – Germantown Auto may continue its historical use as is, but expansion (which is what it was after) would be risky.  As the court stated, quoting an earlier case, “if there is an identifiable change in the [legal nonconforming] use, the enlargement is illegal. If the expansion is a result of a mere increase in the historically allowed use, the enlargement or expansion will be allowed subject to regulatory markers.” Waukesha County v. Pewaukee Marina, Inc., 187 Wis. 2d 18, 27, 522 N.W.2d 536 (Ct. App. 1994).  Thus an incremental expansion due to the natural ebb and flow of the historical business use would probably be safe.  However any major change risks losing the nonconforming status altogether.  It appears to me there’s a large grey area between the two.

New Wind Turbine Bill Introduced (here we go again)

Wednesday, June 1st, 2011

As has been noted in the past on this blog and in many other places, the current law in Wisconsin regarding wind turbines has been unsettled, to say the least.  On May 20, 2011, Senator Frank Lasee from Senate District 1 (east of Green Bay) has introduced a bill that would modify the statute, changing the setback requirements and making other significant changes.  The legislative analysis can be found at the following link: SB98.

Among other things, the bill proposes a minimum setback of a half mile from the nearest property line, unless all property owners agree to a lesser setback.  The bill also requires a minimum setback of 1.1 times the height of the turbine (including the tallest extension of a blade).  The bill also requires the PSC rules to provide reasonable protection from any health effects associated with wind energy systems, including health effects from noise and shadow flicker.  Finally, the bill requires a study of the effect on property values.   

No legislative schedule has been set for the bill as of this writing.

Nonconforming Use – use it or lose it!

Thursday, April 28th, 2011

In an unpublished case, Wilderness Waters & Woods Preserve, LLC v Oneida County Board of Adjustments, the courts reviewed a decision by Onieda County to deny a resort permission to convert to condominiums.

A resort had operated as a nonconforming use for some time.  However, in the early 2000s, business had apparently tapered off, and the resort was used less and less.  In 2006 the resort saw very little, possibly no use as a resort, and in December of 2006 the owner sold the resort to Wilderness Waters.  Wilderness cleaned up and restored the property and applied to Oneida County for permission to convert the resort to condominiums.  The Oneida County Board of Adjustment denied the application, finding that the nonconforming use as a resort had been abandoned for a period of longer than one year, thus the legal nonconforming status was lost.

Wilderness sought certiorari review in court, and presented some evidence that the resort had been used during that one year period, but there was substantial evidence that it had not been used, including a 2006 tax return which showed zero income for the resort (apparently proving there had been no paid guests).  The Circuit Court and the Appeals Court upheld the Board decision, noting that in these types of reviews of board decisions, courts do not weigh the evidence and retry the case, but review for abuse.  If the board decision can reasonably be supported, it must be upheld, even if a court might have come to a different decision.  Here there was solid evidence to support the Board’s position, and thus the courts refused to overturn the County Board’s decision.

“The Board of Review for the Town of Pacific got it right.”

Thursday, August 26th, 2010

With those words, in a unanimous decision, the Wisconsin Supreme Court overruled both the appeals court and the circuit court and held that the developers of declared but unbuilt condominium “units” should be assessed the property taxes on the unbuuilt units.  In Saddle Ridge Corporation v. the Board of Review of the Town of Pacific, Saddle Ridge argued that unbuilt condominium “units” had “zero value” and didn’t really exist until something was built.  The only thing of value was the land, which was, Saddle Ridge argued, a common element.  The importance of this theory is that the property tax on the common elements is apportioned to the condo units which are built.  Thus in a condominium development, if only a few condos are built, those few condo owners would be responsible for the entire property tax burden for all the unbuilt condo “units.”  And, as the court pointed out, under Saddle Ridge’s argument, if no condo units were built, a declared but unbuilt condominium development would not pay any taxes at all.

 This case hinged on the definition of a “unit.”  The court noted that in order for a condominium to be declared, it must define the “units.”  Thus the “units” exist upon the declaration, no matter when they are built.  Once a unit is declared, it is given a parcel number.  Saddle Ridge argued that a unit does not come into existence until it is built, thus there is nothing to tax..  The court noted that according to Saddle Ridge, through a “clever use of definitions in a condominium declaration a developer could avoid paying taxes on a share of the common elements, or that the developer could avoid taxes altogether by never constructing a unit…”

 The Supreme Court said that Saddle Ridge could not have it both ways – a condominium cannot be declared without creating “units,” and those “units” are taxable to the developer.  The Town got it right.

Wanting to do something and actually doing it are two different things!

Tuesday, August 24th, 2010

Uebelacker v. Begler, decided August 18, 2010.  Although not involving a municipality, this unpublished land use case demonstrates the need for careful attention to detail when amending covenants controlling land use.  Uebelacher and Begler are neighboring property owners in the Upper Oconomowoc Lake Association, and as such are subject to a 1961 agreement concerning the building of boathouses.  In 2003, a majority of the property owners voted to amend the agreement and require all boathouses be attached to the residence.  Uebelacker built a detached boathouse, and Begler sued. 

This case hinged on the proper procedure required for amending the 1961 agreement, which stated that amendments could only be made if “an instrument signed by a majority of the then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.”  Although a majority of the owners apparently approved of the amendment, only three members of the Architectural Control Committee signed the recorded document.  Based on the undisputed fact that a majority of the members had not signed the recorded amendment, the circuit court held the amendment invalid and thus unenforceable.  The appeals court upheld the circuit court decision, noting: “The simple answer is that wanting to amend the 1961 agreement and actually doing so are two different things.”

 The important note here is that it is important to follow your own rules – this is an area where municipalities are often challenged – a failure to follow the procedures they have enacted.

Governor Doyle signs AB-260 effectively overruling Wood v. City of Madison.

Monday, May 24th, 2010

On May 18th, Governor Doyle signed AB-260 (Wisconsin Act 399) effectively overruling Wood v. City of Madison, 2003 WI 24.  In Wood, the court ruled that the City of Madison could reject a plat in the extraterritorial subdivision area based on the proposed use.  The new law prohibits a municipality (city or village) from denying approval of a plat or certified survey map on the basis of the proposed use of the land in the extraterritorial area (unless there is a plan or regulation adopted under the extraterritorial zoning statute – 62.23(7a)(c)).

Plain Language Reigns – “certification” required, but there is substance beneath the plain language surface formality!

Monday, March 22nd, 2010

In a recent unpublished decision, Johnson v. Washburn County and Town of Spooner, the Johnsons had applied to the County to rezone a parcel they owned from forestry to PUD (planned unit development).  The County forwarded the request to the Town and the Town sent back the form the County had provided with the word “denial” on it, but with no reasons stated for the denial.  Although it was signed by the Town Chair, the two Town Supervisors and the Clerk, there was no showing that there had been a public board meeting or resolution passed.  The County approved the rezone anyway, but only then did the Town pass a formal resolution disapproving the rezone and supposedly invalidating the County action.  The County then told the Johnsons that the rezone was effectively invalidated by the Town.  The Johnsons sued.  The circuit court held that although the Town had not given the County a “certified” denial, that the substance of the form they had submitted was sufficient.  The Appeals Court said no – a certified form was required.  The reason that the certified form is required is to insure that the Town held a proper public meeting and passed a formal resolution.  Reading between the lines, one might say the Appeals Court noted that open government is required in Wisconsin, and that the certified form was the way the public could be ensured that the local board acted in an open and impartial manner.

Do some research before buying into “Coordination” ordinances.

Tuesday, February 16th, 2010

The February 10, 2010 edition of the State Bar’s Rotunda Report, which focused on the unauthorized practice of law, had an article on the Coordination concept being sold to local governments in Wisconsin. The gist of it is that if a local government adopts an ordinance with the right magic “coordination” words in it, then it can force other local as well as state and federal agencies and governments to coordinate with the local government on any land use matters. The idea is that this supposedly gives local governments power and essentially a veto over any state or federal agency that has land use authority in the local municipality. This idea was explored and mostly debunked in a thoughtful article by Lee Turonie of the Towns Association in the February 2009 edition of the Wisconsin Towns Association Report. I strongly suggest that any municipality considering a coordination ordinance should study the issue carefully and not just rely on the info presented by the people trying to sell it to you: read Attorney Turonie’s article, and seek the advice of your local attorney before spending the taxpayer’s money buying into this idea. (To the best of my knowledge, Lee’s article is not online, but you can contact the Town’s Association at 715-526-3157).

Plain Language Reigns in a Waupaca County Shoreland Zoning Case Involving De Minimis Change to Nonconforming Structure

Wednesday, February 3rd, 2010

In Waupaca County v. Bax, the Court of Appeals reversed a decision of the Waukesha County Circuit Court which had held that the expansion of a utility shed in violation of the Waupaca County Shoreland Zoning Ordinance was “de minimis” and thus not a violation.  Although the facts are a little less than certain, Bax had a nonconforming shed on his property.  At some point, he expanded it, adding something more than three inches on two sides.  The shoreland zoning ordinance did not allow expansions of utility sheds.  The Court of Appeals, while not dismissing the doctrine of de minimis, stated that a 6.7% expansion was not a de minimis enlargement.   The de minimis doctrine is defined by Black’s Law Dictionary as “The law does not care for, or take notice of, very small or trifling matters.”  While expanding a utility shed a few inches on two sides may seem trivial, the Appeals Court did not focus on the seemingly small enlargement but instead relied on the percentage of expansion, and pointed out that a 6.7% expansion into a setback area would not be considered de minimis.