Busse v. City of Madison

• Decision Date: 29 October 1992
• Docket Number: No. 92-0038,92-0038
• Citation: 177 Wis.2d 808,503 N.W.2d 340
• Parties: Edward BUSSE, and Hovde Development Corp., a General Partnership Known as River Ridge Joint Venture, Plaintiffs-Appellants, d v. CITY OF MADISON, A Municipal Corporation, Common Council for the City of Madison, A Municipal Corporation, George E. Austin, Secretary of the Madison Plan Commission, and Andre Blum, Madison City Clerk, Defendants-Respondents. . Oral Argument
• Court: Wisconsin Court of Appeals

Page 340

503 N.W.2d 340

177 Wis.2d 808

Edward BUSSE, and Hovde Development Corp., a General Partnership Known as River Ridge Joint Venture, Plaintiffs-Appellants, ^d v. CITY OF MADISON, A Municipal Corporation, Common Council for

the City of Madison, A Municipal Corporation, George E.

Austin, Secretary of the Madison Plan Commission, and Andre

Blum, Madison City Clerk, Defendants-Respondents.

No. 92-0038.

Court of Appeals of Wisconsin.

Oral Argument Oct. 29, 1992.

Opinion Released June 17, 1993.

Opinion Filed June 17, 1993.

Before GARTZKE, P.J., and DYKMAN and SUNDBY, JJ.

DYKMAN, Judge.

This is an appeal from an order affirming the City of Madison Common Council's rejection of the "River Ridge Run" revised preliminary plat. Because we conclude that the council's rejection was not arbitrary, unreasonable or discriminatory, we affirm.

BACKGROUND

River Ridge Joint Venture, a general partnership, purchased 198 acres of land from the Adult Christian Education Foundation, Inc. for the purpose of subdividing the land to provide residential building sites. ¹ The land straddles the boundary between the City of Madison and the Town of Westport, with 111 acres in the city and eighty-seven acres in the town. An initial preliminary plat placed some of the project's streets and lots in the city, but the revised plat placed all lots and streets in the town. Southeast of the plat is the Yahara River, and between the river and the plat are wetlands. The area is known as the Cherokee Marsh, though none of the plat is in the marsh.

River Ridge obtained conditional approval of its plat from the town and from Dane County. It discussed the project with City of Madison planning and development staff, and ultimately submitted a revised preliminary plat to the city plan commission. On February 1, 1990, the city staff planning unit report recommended rejection of the plat. The city plan commission held hearings on December 4, 1989, and February 5, 1990, where much testimony was heard, most of which was adverse to River Ridge. The plan commission recommended that the city council reject the revised preliminary plat. The common council rejected the plat, giving eleven reasons for doing so. River Ridge appealed to the circuit court, which affirmed the common council. River Ridge appeals.

STANDARD OF REVIEW

A person aggrieved by a municipality's failure to approve a plat may appeal to the circuit court pursuant to sec. 236.13(5), Stats., which incorporates the review procedure of sec. 62.23(7)(e) 10, 14 and 15, Stats. This procedure is known as "statutory certiorari," and may include additional evidence being offered to the court. But where, as here, no additional evidence is taken, the circuit court and this court review

the common council's decision under traditional standards of common law certiorari. State ex rel. Brookside Poultry Farms, [177 Wis.2d 812] Inc. v. Jefferson County Bd. of Adjustment, 131 Wis.2d 101, 122, 388 N.W.2d 593, 601 (1986). Those standards, codified in sec. 236.13(5), are whether the action of the approving authority (here, the common council) was arbitrary, unreasonable or discriminatory. The test is whether the decision of the common council is adequately supported by evidence in the record. Brookside, 131 Wis.2d at 122, 388 N.W.2d at 601.

DECISION

In its brief, River Ridge asserts that the City of Madison Common Council did not have authority to reject its preliminary plat. ² It contends that a city's only response to a preliminary plat is conditional approval. But at oral argument, River Ridge agreed that a city could reject a preliminary plat if the land were unsuitable for development. We reject the notion that a city must approve all preliminary plats, if only conditionally. Section 236.11(1)(a), Stats., provides: "Within 90 days [of submission] the approving authority ... shall take action to approve, approve conditionally, or reject the preliminary plat and shall state in writing any conditions of approval or reasons for rejection...." (Emphasis added The plain meaning of sec. 236.11(1)(a) makes River Ridge's assertion untenable. A city may reject a preliminary plat. ³

We also conclude that we need not address all eleven reasons the city gave for its rejection of River Ridge's preliminary plat. If one of the city's reasons for rejecting the plat is adequate, whether the other reasons are valid is irrelevant. We will therefore examine a reason given by the city that falls within River Ridge's concession that a city may reject a preliminary plat if the land is unsuitable for development.

Section 16.23(3)(a)3 of the Madison, Wis., General Ordinances provides:

No land shall be subdivided which is held by the City Plan Commission to be unsuitable for use by reason of flooding, bad drainage, soil or rock formations with severe limitations for development, severe erosion potential, or unfavorable topography, or any other feature likely to be harmful to health, safety or welfare of future residents or landowners in the proposed subdivision or of the community.

The City Plan Commission in applying the provisions of this section shall in writing recite the particular facts upon which it bases its conclusion that the land is not suitable for the proposed use, after affording the subdivider an opportunity to present evidence regarding such suitability at a public hearing.

The common council's resolution rejecting River Ridge's revised preliminary plat reads in pertinent part: ⁴

WHEREAS, the Madison Plan Commission determined that the land proposed to be subdivided is unsuitable for development as set forth in Section 16.23(3)(a)3.; and

The Plan Commission is not satisfied that adequate measures have been taken to ensure protection of the health, safety, and general welfare of the community from the combined impacts of the following factors:

Urban runoff contaminated with lawn chemicals, road salt, and other urban pollutants in an area underlain by fractured bedrock may affect the quality of groundwater feeding Cherokee Marsh and nearby wells.

Either shallow or deep wells to serve the proposed subdivision will alter the level and flow of groundwater which may affect the flow of springs and seepages into Cherokee Marsh.

Erodible soils, urban pollutants, construction site runoff, increased overall runoff, and inadequate erosion control and stormwater detention measures may result in the deposit of silt and pollutants in wetlands and the Yahara River downstream from the proposed subdivision.

The above-mentioned factors together with the overall loss of wildlife habitat due to the proposed subdivision will adversely affect the flora and fauna of Cherokee Marsh and may reduce and endanger the population of some important species.

Madison, Wis., Resolution No. 46,432 (Feb. 20, 1990).

We now examine the objections River Ridge has to these findings.

River Ridge cites a comment from the Madison superintendent of parks that "[i]t appears that the developer can also meet the conditions re: stormwater detention and deed restrictions to minimize visual impact," and his recommendation that if the plat is approved, it should meet the City of Madison's standards for stormwater detention and erosion control.

The common council is not required to accept the recommendations of its parks superintendent. In any event, the question is not whether this project meets general standards of stormwater detention and erosion control, but whether under Madison, Wis., Gen. Ordinances § 16.23(3)(a)3, there are particular features of this plat which make it unsuitable for development.

River Ridge argues that there is no evidence in the record which shows that the plat's two proposed wells would alter the level or flow of groundwater. But River Ridge cites no authority that requires the city to prove that groundwater would be affected. Under certiorari review, we inquire only whether the city's reasons are arbitrary, unreasonable or discriminatory. The plan commission and the common council heard evidence that the Wisconsin Department of Natural Resources had recommended that a hydrological study of the Cherokee Marsh be done. Pamela Porter, the Executive Secretary of the Madison Audubon Society, opined that the proposed subdivision would probably adversely alter the quantity and rate of water entering Cherokee Marsh, which she and many others described as a Priority Group I wetland, a rating reserved for wetlands that "contain many or all virgin traits and unique biological features."

We recognize that River Ridge produced conflicting opinions. But that is not the test. The common council was not obliged to accept those opinions. We conclude that it is not arbitrary, unreasonable or discriminatory to accept opinions that a plat would probably adversely affect groundwater which feeds an important wetland.

River Ridge contends that there is no evidence in the record showing that loss of wildlife habitat would affect the flora and fauna of Cherokee Marsh and reduce and endanger the population of some important species. This is not correct. The record contains a letter from Donald M. Waller, a botany professor at the University of Wisconsin-Madison. He notes that housing developments around the Cherokee Marsh would result in less habitat for animals that now live around the marsh. He believes that the marsh needs an "expanded buffer zone" to prevent its sensitive plant and animal species from being disrupted. He writes that recent research in conservation biology shows a "need to reduce habitat disruption and fragmentation if sensitive wildlife species are to be preserved." According to a spokesperson for the Yahara Basin Neighborhood Association, River Ridge's land harbors wild turkeys, sandhill cranes, deer, opossum, foxes, mink, weasels and woodchucks. The Madison Audubon Society noted a long list of birds that use the Cherokee Marsh, and its executive secretary opined that "future development of the uplands of the...