City of Waukesha v. Town Bd. of Town of Waukesha
| Decision Date | 10 March 1995 |
| Docket Number | Nos. 94-0812,s. 94-0812 |
| Citation | 198 Wis.2d 592,543 N.W.2d 515 |
| Court | Wisconsin Court of Appeals |
| Parties | CITY OF WAUKESHA, Plaintiff-Respondent, v. TOWN BOARD OF the TOWN OF WAUKESHA, Plan Commission Of the Town of Waukesha, Jondex Corporation and George Eagan, Jr., Defendants-Appellants. d W.T. CORPORATION and Waukesha County, Plaintiffs-Respondents, v. The TOWN OF WAUKESHA, The Plan Commission of the Town of Waukesha, The Town Board of the Town of Waukesha, George Egan, Jr., and Jondex Corporation, Defendants-Appellants.d Royal C. NEUMANN, Plaintiff-Respondent, v. TOWN OF WAUKESHA and Town of Waukesha Plan Commission, Defendants-Appellants,d Waukesha County, Defendant-Respondent. Royal C. NEUMANN and Waukesha County, Plaintiffs-Respondents, v. TOWN OF WAUKESHA, Town of Waukesha Plan Commission and Jondex Corporation, Defendants-Appellants.d thru 94-0815. . Oral Argument |
Appeals from judgments of the circuit court for Waukesha County: Patrick L. Snyder, Judge.
On behalf of the defendants-appellants, there were briefs and oral arguments by James W. Hammes of Cramer, Multhauf & Hammes, Waukesha.
On behalf of the plaintiff-respondent City of Waukesha, there was a brief and oral arguments by Curt R. Meitz, City Attorney.
On behalf of the plaintiff-respondent W.T. Corporation, there was a brief and oral arguments by Scott V. Lowry, Waukesha.
On behalf of the plaintiff-respondent Waukesha County, there were briefs and oral arguments by William J. Domina, Assistant Corporation Counsel.
On behalf of the plaintiff-respondent Royal C. Neumann, there were briefs by James L. Steimel and James L. Dunlap of Steimel & Dunlap, S.C., Waukesha. There were oral arguments by James L. Steimel.
Before BROWN, NETTESHEIM and SNYDER, JJ.
The Town of Waukesha (Town) appeals from trial court judgments reversing the grant of a conditional use permit (permit) under the Town's planned unit development (PUD) ordinance. 1 The permit allowed for the commercial development of a 106,000 square-foot shopping center and strip mall contrary to the parcel's existing zoning. This parcel is in an area zoned R-3 (residential) and I-1 (limited industrial). The Town raises four issues on appeal: (1) whether the PUD ordinance is valid and enforceable, (2) whether this ordinance authorizes the Town Board of the Town of Waukesha (Town Board) to approve a PUD as a conditional use, (3) whether the action of the Town Board in issuing the permit was arbitrary and unreasonable and (4) whether the City of Waukesha (City) has standing to bring an action contesting the issuance of the permit. 2 Because we conclude that the PUD ordinance, TOWN OF WAUKESHA, WIS., CODE § 11.11(i)(14), under which the conditional use permit was granted was invalid and void, we affirm.
On June 27, 1979, the Town Board enacted a zoning ordinance in accordance with the provisions of § 62.23, STATS. That ordinance zoned the parcel at issue residential and limited industrial. In the spring of 1990, an application was filed with the Town to rezone the parcel to a B-2 (local business) designation. The Town Board held a public hearing and subsequently adopted an ordinance rezoning the parcel as requested. The B-2 designation allows commercial development. See TOWN CODE § 11.34.
In order to complete the rezoning process, the approval of the county board of supervisors (county board) was required. See § 60.62(3), STATS. After the Town submitted the rezoning for consideration, the county board requested further information. Before the rezoning could be resubmitted, the City, which opposed the rezoning, adopted an extraterritorial zoning ordinance. This had the legal effect of placing a two-year "freeze" on any kind of zoning changes to any unincorporated property within three miles of the corporate limits of the city. See § 62.23(7a), STATS. Because of the parcel's location--an "island" surrounded by city property--the freeze effectively blocked the Town's attempt to rezone the parcel. After the adoption of the extraterritorial ordinance by the City, the Town's request for rezoning was never taken to the county board for approval.
In January 1993, the Town Board amended several sections of its zoning code, including an amendment to TOWN CODE § 11.11(i)(14), a paragraph of the conditional uses section. The amendment changed the title of this paragraph from "Residential Planned Unit Developments" to "Planned Unit Developments," and also included significant changes in the provisions of the section. All of the proposed amendments were unanimously approved by the county board, as required by § 60.62(3), STATS.
Several months later, George Egan, Jr. and Jondex Corporation made application to the Town for a conditional use permit which would authorize a commercial PUD on the same parcel that had been the subject of the earlier rezoning attempt. Under the amended section of the Town's zoning code, a commercial PUD could be approved as a conditional use in any district, as long as certain underlying conditions were met. 3 As a condition of approval, the Town was to receive $300,000 from the developers if the conditional use permit were granted.
The Plan Commission of the Town of Waukesha (Plan Commission) and the Town Board conducted a public hearing on the permit as mandated. See TOWN CODE § 11.11(c). Following the hearing, the Plan Commission determined that all conditions identified in the zoning ordinances for the issuance of the permit had been satisfied. See TOWN CODE § 11.11(d). The Plan Commission recommended that the Town Board grant the requested permit, which it did.
The City then filed a claim 4 for a writ of certiorari to review the actions of the Plan Commission and the Town Board, and requesting a judgment reversing the issuance of the permit and a finding that the action of the Town Board was "illegal, arbitrary, capricious, [and] unreasonable." The City's second claim was for a declaratory judgment, pursuant to § 806.04, STATS., to declare that the issuance of a conditional use permit for a commercial PUD in a residential zoning district was illegal, void and contrary to law.
The trial court found that the action of the Town in issuing a permit under this ordinance was invalid in that the granting of a conditional use permit for a commercial PUD in a residential district was a "de facto rezoning" of the property. The trial court further held that TOWN CODE § 11.11(i)(14) was invalid and void. This appeal followed.
The parties to this consolidated appeal have raised various issues and offer varying arguments with respect to the trial court's decision. If a decision on one point disposes of an appeal, this court need not decide other issues raised. See Sweet v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct.App.1983). Those arguments pertinent to our analysis will be addressed as applicable.
The dispositive issue requires this court to review and interpret the validity of a zoning ordinance. The construction and application of an ordinance to a particular set of facts is a question of law which we review de novo. Eastman v. City of Madison, 117 Wis.2d 106, 112, 342 N.W.2d 764 767 (Ct.App.1983). The rules for the construction of statutes and ordinances are the same. County of Sauk v. Trager, 113 Wis.2d 48, 55 334 N.W.2d 272, 275 (Ct.App.1983), aff'd, 118 Wis.2d 204, 346 N.W.2d 756 (1984). We begin with the premise that a zoning ordinance enacted pursuant to § 62.23, STATS., is presumed to be valid and must be liberally construed in favor of the municipality. Bell v. City of Elkhorn, 122 Wis.2d 558, 568-69, 364 N.W.2d 144, 149 (1985). An alleged invalidity must be clearly shown by the party attacking the ordinance. Id. at 569, 364 N.W.2d at 149.
The ordinance in question is a subsection of § 11.11 of the TOWN CODE entitled "Conditional Uses." It states in relevant part:
CONDITIONAL USES. Conditional uses and their accessory uses are considered as special uses requiring review, public hearing and approval by the Town Plan Commission in accordance with the regulations of this section.
....
(d) Basis of Approval. The determination of such conditional use shall be by the bodies hereinafter designated and shall be based on consideration of whether or not the proposed use will violate the spirit and intent of the ordinance; ....
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(i) Conditional Uses Permitted. Subject to the foregoing, in addition to such uses enumerated in the district regulations, the following may be permitted in the districts specified,....
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(14) Planned Unit Developments: Due to the increased urbanization and the associated greater demands for open space, it is herein provided that there be flexibility in the regulations governing the development of land. This provision is intended to encourage Planned Unit Development in directions which will recognize both the changes in design and technology in the building industry, and the new demands in the market....
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D. After all conditions of a Planned Unit Development project are certified by the Town as being completed, the conditional use status of such completed development shall be changed to a permitted use in the district in which it is located.
This amended portion, beginning with paragraph (14), was enacted in January 1993 by the Town Board and presented to the county board for approval. 5 See § 60.62(3), STATS. This amendment received unanimous approval. Although the statutory mandates for amending the zoning ordinance were followed, the trial court determined that the dispositive issue was the validity of the amendment. We agree. In our de novo review of the validity of this ordinance, we first consider the concept of a "conditional use."
Conditional uses enjoy acceptance as a valid and appropriate means of municipal planning on virtually a universal scale. State ex rel. Skelly Oil Co. v. Common Council, 58 Wis.2d 695, 700, 207 N.W.2d 585, 587 (1973...
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