Roberts v. Manitowoc County, 2005AP2111.
| Citation | 2006 WI App 169,721 N.W.2d 499 |
| Decision Date | 05 July 2006 |
| Docket Number | No. 2005AP2111.,2005AP2111. |
| Parties | Anita ROBERTS, Dean Anhalt, David Korinek, Lynn Korinek and Citizens Opposing Windturbine Sites, Plaintiffs-Appellants, v. MANITOWOC COUNTY BOARD OF ADJUSTMENT and Navitas Energy, Inc., Defendants-Respondents. |
| Court | Court of Appeals of Wisconsin |
On behalf of the defendant-respondent Manitowoc County Board of Adjustment, the cause was submitted on the brief of Susan E. Lovern of von Briesen & Roper, S.C. of Milwaukee.
On behalf of the defendant-respondent Navitas Energy, Inc., the cause was submitted on the brief of Eric M. McLeod and Michael A. Hughes of Michael Best & Friedrich LLP of Madison.
Before SNYDER, P.J., BROWN and ANDERSON, JJ.
¶ 1
Anita Roberts, Dean Anhalt, David Korinek, Lynn Korinek and Citizens Opposing Windturbine Sites (together, Roberts) appeal from an order dismissing their claims and affirming the Manitowoc County Board of Adjustment's decision to issue a conditional use permit to Navitas Energy, Inc. to build a forty-nine-turbine wind energy park. Following the decision of the Board, Roberts sought certiorari review in circuit court. The circuit court held that the Board properly granted the conditional use permit to Navitas. On appeal, Roberts contends that the Board applied the wrong legal standard, employed unfair time limits to minimize public input, and made a decision unsupported by the evidence. We disagree and affirm.
¶ 2 On October 27, 2004, Navitas applied to the Board for a conditional use permit to construct Twin Creeks Wind Park, which includes forty-nine proposed wind turbines. By ordinance, the Board was required to conduct a hearing on the application within sixty days of receiving it and to provide a class two notice of the hearing. See MANITOWOC COUNTY, WIS., CODE § 24.09(2) (2005).1 A class two notice requires that two insertions be published prior to the hearing. WIS. STAT. § 985.07(2) (2003-04).2
¶ 3 Navitas' application was placed on the agenda for the Board's December 20, 2004 meeting. The Board published the public hearing notice in the Manitowoc Herald-Times-Reporter on December 8 and December 13. The notice stated, in relevant part:
[Navitas] wishes to construct and operate a 49 turbine wind farm in A-3, Agriculture zoned districts. The turbines are proposed to be located on the following properties . . . [affected property owners listed].
Interested persons are urged to attend this meeting. Those wishing to submit written testimony may do so up to and including the time of said hearing.
In addition to publishing the official notice, the Board sent notice of the meeting to "adjacent property owners" by courtesy copy of a letter addressed to Jerrid Anderson of Navitas. The letter confirmed the date, location, and Navitas agenda topic for the meeting and included the following text: "(Any group, individual, or local unit of government that makes application to the Board of Adjustment is requested to make a special effort to contact all property owners affected, as well as all adjacent property owners in order that they may be aware of its importance.)"
¶ 4 On December 20, the Board chair, Orville Bonde, opened the hearing by inviting attendees to speak in favor of or against the Navitas application but asked that speakers limit their remarks to five minutes. The first to speak was Anderson, who gave a presentation on Navitas and the proposed wind energy park. He explained that, in addition to seeking a conditional use permit from the county, Navitas would require approval or clearance from several different agencies such as the Federal Aviation Administration, the Wisconsin Department of Natural Resources, and the Wisconsin State Historical Preservation Office. He also advised the Board that Navitas had entered twenty-year lease agreements, with two five-year extensions, with the owners of the farms that made up the proposed wind energy park site.
¶ 5 Following Anderson's remarks, the Board invited others to speak. Several local residents spoke against the proposed wind energy park. They reiterated concerns about the project's impact on their quality of life, health, and safety. Many also shared the opinion that they had received inadequate notice of the proposed project and of the hearing.
¶ 6 After all who wished to speak were finished, Matt Payette, senior planner, and Peter Tarnowski, code administrator, presented the Manitowoc County Planning and Park Commission Staff Report to the Board. Relevant excerpts from the report are as follows:
[Payette:] Manitowoc County drafted an ordinance within the last couple of months called the Manitowoc County Wind Energy System Ordinance. . . . [T]he ordinance states that the Board will grant a conditional use permit if it is determined that the requirements of the ordinance are met and that the granting of the permit will not unreasonably interfere with the orderly land use and development plans of the county. The Board may include conditions in the permit if those conditions preserve the public health and safety and do not significantly increase the cost of the system or significantly decrease its efficiency or allow for an alternative system of comparable costs or efficiency. . . .
In review of the application at hand, it appears that [Navitas] meets the minimum standards that are required in the . . . Ordinance. Worth noting on page . . . six and seven you'll notice that there are sites that need variances. All the sites identified are within the wind project area and are participating owners. And those variances include variances to participating lot lines and participating residences.
. . . .
There's been a lot of testimony tonight on different factors of the project. And if the Board feels that it needs to apply additional conditions to this it can apply conditions that are listed throughout the staff report.
¶ 7 After the staff report, Board member Jim Aasen questioned Payette about the reference to variances. Tarnowski responded that the term variance as used in the ordinance was part of the conditional use process.
¶ 8 The Board took a break off the record and upon returning, it proceeded with a vote on the Navitas application. Board member Laurel Vondrachek moved to approve the "conditional use and variances for the turbines." Vondrachek added that Navitas had to "get all their federal permits," "find [out] if there is any problem with any historical things there," obtain "financial assurance," "have the lowest amount of light intensity possible which would meet the FAA minimum requirements," and "[g]et a road use permit from the town." Aasen contested the Board's ability to consider the variances and suggested that the Board table the matter and request a legal opinion on its power to take them up. Ultimately, Bonde seconded Vondrachek's motion, and it passed on a vote of three to one.
¶ 9 Roberts sought certiorari review of the Board's decision pursuant to WIS. STAT. § 59.694(10), and Navitas intervened to protect its interests in the conditional use permit. The circuit court, in a comprehensive and detailed oral decision, affirmed the Board's decision and dismissed the plaintiffs' claims with prejudice. Roberts appeals.
¶ 10 On appeal, we review the Board's decision, not the decision of the circuit court. Board of Regents v. Dane County Bd. of Adjustment, 2000 WI App 211, ¶ 10, 238 Wis.2d 810, 618 N.W.2d 537. The decision to grant a conditional use permit is discretionary; we hesitate to interfere with administrative decisions and we will not substitute our discretion for that of the Board. See Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis.2d 468, 476, 247 N.W.2d 98 (1976). We accord the decision of the Board a presumption of correctness, and here, Roberts has the burden of overcoming that presumption. See Miswald v. Waukesha County Bd. of Adjustment, 202 Wis.2d 401, 411, 550 N.W.2d 434 (Ct.App.1996).
¶ 11 When a case is before the court on certiorari review, the inquiry is limited to the following four factors: (1) did the Board keep within its jurisdiction; (2) did the Board proceed on the correct theory of law; (3) was the action of the Board arbitrary, oppressive, or unreasonable, and did it represent the will of the Board rather than its judgment; and (4) was the evidence such that the Board could have reasonably reached the determination under review. See id., at 410-11, 550 N.W.2d 434.
¶ 12 We quickly dispense with the first factor, because no party disputes that the conditional use permit application was properly before the Board. Rather, Roberts argues that the Board failed to apply the law of zoning variances to the setback requirements referenced in the Wind Energy System Ordinance, that the five-minute time limit for presentations imposed by the board was arbitrarily conceived and implemented, and that the evidence presented was insufficient to support the Board's determination. We take each issue in the order presented.
¶ 13 We first turn to the Wind Energy System Ordinance, specifically the provision relating to setbacks, which states in relevant part:
(2) Set Backs. . . .
(b) The wind tower in a large wind system and each wind tower in a wind farm system must be set back:
1. from the property line of the parcel on which the wind tower is located by a distance equal to 1.1 times the height of the wind tower, but the Board of Adjustment may grant a variance if the property line is shared with an adjacent parcel within the same wind farm system.
2. from any residence or business that is on an adjacent parcel by a distance of 1,000 feet, but the Board of Adjustment may grant a variance if the adjacent parcel is located...
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