Grand Videre Enterprises LLC v. Town of Janesville, No. 2005AP1220 (Wis. App. 6/28/2007)

• Decision Date: 28 June 2007
• Docket Number: No. 2005AP1220.,2005AP1220.
• Citation: Grand Videre Enterprises LLC v. Town of Janesville, No. 2005AP1220 (Wis. App. 6/28/2007), No. 2005AP1220. (Wis. App. Jun 28, 2007)
• Parties: Grand Videre Enterprises LLC and Grand Videre Estates Condominium Association, Inc., Plaintiffs-Appellants, v. Town of Janesville, Defendant-Respondent, Raymond Gehrig and Audrey Gehrig, Intervenors-Respondents.
• Court: Wisconsin Court of Appeals

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Grand Videre Enterprises LLC and Grand Videre Estates Condominium Association, Inc., Plaintiffs-Appellants, v. Town of Janesville, Defendant-Respondent Raymond Gehrig and Audrey Gehrig, Intervenors-Respondents.

No. 2005AP1220.

Court of Appeals of Wisconsin, District IV.

Opinion Filed: June 28, 2007.

APPEAL from an order of the circuit court for Rock County: R. A. BATES, Judge. Affirmed.

Before Dykman, Vergeront and Higginbotham, JJ.

¶ 1 HIGGINBOTHAM, J

Grand Videre Enterprises, LLC and Grand Videre Estates Condominium Association, Inc. (collectively "Grand Videre") appeal a circuit court order upholding a decision of the Town of Janesville Town Board ("Town Board") to rezone a parcel of land owned by Raymond and Audrey Gehrig. Grand Videre argues that the Town Board's decision to rezone the Gehrigs's property was an arbitrary and unreasonable exercise of discretion because the Town Board's sole purpose in rezoning the property was to "legalize" the Gehrigs's nonconforming use. Grand Videre also asserts that the Town Board's rezoning of the Gehrigs's property was arbitrary and unreasonable because it was illegal spot zoning. We reject both arguments and affirm the circuit court's order.

BACKGROUND

¶ 2 Grand Videre Estates is a 265-acre condominium development in the Town of Janesville, Rock County, Wisconsin. The Gehrigs own approximately 200 acres of property, which adjoins the Grand Videre property.

¶ 3 The portion of Grand Videre's property adjacent to the Gehrigs's property is zoned A-3 (small scale agricultural district). The Gehrigs's property was originally zoned A-1 (exclusive agricultural district) but the rezoning of their property that is the subject of this action changed the property's classification to A-2 (general agricultural district). The Gehrigs's property adjoins other A-2 property, as well as A-1, A-3, and C-1 property (lowland conservancy overlay district).

¶ 4 On October 13, 2003, the Gehrigs applied to rezone their property from A-1 to A-2, and to receive a conditional use permit (CUP) allowing them to operate a sport shooting preserve on their property. After a public hearing, the Town Board's Planning and Zoning Committee (PZC) approved both requests. The Town Board followed the PZC's recommendation and unanimously voted to rezone the Gehrigs's property from A-1 to A-2. In a separate vote, the Town Board also approved the issuance of the CUP allowing sport shooting on the property, subject to certain conditions and restrictions.

¶ 5 After the Gehrigs's property was rezoned, Grand Videre commenced this action, seeking a declaratory judgment that the Town Board's decision to rezone the Gehrigs's property and its granting of the CUP to the Gehrigs were unlawful. After receiving permission to intervene in the lawsuit, the Gehrigs moved to dismiss the action. On January 3, 2005, the circuit court granted the Gehrigs's motion to dismiss Grand Videre's challenge to the issuance of the CUP; the court also dismissed paragraph 37 and a portion of paragraph 40 of Grand Videre's complaint, which specifically challenged the issuance of the CUP. However, the court denied the Gehrigs's motion to dismiss Grand Videre's challenge to the rezoning. Grand Videre did not timely appeal the dismissal of its CUP-related claims.

¶ 6 The Town subsequently moved for summary judgment on the rezoning issue. The circuit court granted the summary judgment motion dismissing all remaining claims, concluding that the Town had a reasonable legislative basis for changing the property's zoning from A-1 to A-2 and that the Town Board did not act in an arbitrary or unconstitutional manner. Grand Videre appeals.

DISCUSSION

¶ 7 Grand Videre appeals the circuit court's summary judgment order upholding the Town Board's decision granting the Gehrigs's petition to rezone their property. Summary judgment is appropriate when there is no material factual dispute and a party is entitled to judgment as a matter of law. See Germanotta v. National Indem. Co., 119 Wis. 2d 293, 296, 349 N.W.2d 733 (Ct. App. 1984). Summary judgment methodology is well established and need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶¶20-24, 241 Wis. 2d 804, 623 N.W.2d 751. We review decisions to grant or deny summary judgment de novo, applying the same standard as the circuit court. Step Now Citizens Group v. Town of Utica Planning and Zoning Comm'n, 2003 WI App 109, ¶24, 264 Wis. 2d 662, 663 N.W.2d 833.

¶ 8 WISCONSIN STAT. § 60.61(2) (2003-04)¹ authorizes a town board to adopt zoning ordinances if the town is located in a county that has not adopted a zoning ordinance under Wis. Stat. § 59.69. See Magnolia Twp. v. Town of Magnolia, 2005 WI App 119, ¶12, 284 Wis. 2d 361, 701 N.W.2d 60.Wis. 2d Zoning is a matter of legislative discretion, and those challenging the zoning decisions of a municipality bear a heavy burden. Step Now, 264 Wis. 2d 662, ¶26.² When we review such challenges to zoning decisions, we begin with the presumption that zoning ordinances and decisions made pursuant to WIS. STAT. § 60.61(2) are valid. See id." 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." Id. The zoning authority's decision controls unless the challenging party demonstrates an erroneous exercise of discretion, excess of power or error of law. Id.

¶ 9 Grand Videre first asserts that the Town Board's decision granting the Gehrigs's petition to rezone their property was an arbitrary and unreasonable exercise of discretion. Specifically, Grand Videre contends that the Town Board's sole purpose for granting the Gehrigs's rezoning petition was to "legalize" the Gehrigs's sport shooting business, which, in Grand Videre's view, was an illegal nonconforming use under the Town's zoning ordinance. According to Grand Videre, the "weight of authority holds that a municipality abuses its zoning discretion and acts in an arbitrary and unreasonable manner when it rezones property for the sole purpose of legalizing an illegal nonconforming use." Grand Videre further argues that the Town Board's abuse of discretion in rezoning the Gehrigs's property to legalize the sport shooting business was aggravated because the Town Board knew or should have known that the Gehrigs's business was an illegal nonconforming use.

¶ 10 The Town³ counters that its rezoning decision was proper under Wisconsin statutes, the Town of Janesville zoning ordinance and the Rock County development plan for the Town of Janesville.⁴ Specifically, the Town argues that its decision to rezone the Gehrigs's property was consistent with the development plan and that it applied the proper criteria in granting the Gehrigs's rezoning petition. The Town also refutes Grand Videre's contention that the Town Board illegally rezoned the property in order to legalize a nonconforming use. According to the Town, the Gehrigs's nonconforming use of their property was legal. The Gehrigs argue that the rezoning "merely changed the zoning from A-1 to A-2." As the argument goes, the rezoning itself did not allow the Gehrigs to operate a sport shooting business; rather, approval of the CUP authorized the use of their property in this way. As to Grand Videre's "nonconforming use" arguments, the Town argues that Grand Videre's "claims regarding use are nothing more than a veiled attempt to appeal the conditional use permit, which they failed to appeal in a timely manner." Finally, the Town asserts that the decision to rezone was in the public's interest.

¶ 11 We conclude, applying the presumption that the zoning ordinance is valid and giving controlling deference to the Town Board's zoning authority, that the Town Board properly exercised its discretion in granting the Gehrigs's petition to rezone their property. See Step Now, 264 Wis. 2d 662, ¶26.

¶ 12 At a regular meeting held on November 3, 2003, the Town Board voted to approve the Gehrigs's rezoning petition. The only record of these proceedings is the minutes of the meeting. None of the parties provided a transcript of the meeting; thus, we cannot determine from the record of the proceedings the factors each member of the Board considered to approve the petition to rezone.

¶ 13 However, the PZC held a public hearing earlier in the evening of November 3. A transcript and the minutes of that hearing are in the record before us. A report of the hearing was provided to the Town Board to assist the Board in reaching its decision to rezone the Gehrigs's property. Thus, it is helpful to consider the testimony provided at the hearing and the discussion by the members of the PZC.

¶ 14 We begin by examining the legal standards Town Board members may consider as they decide whether to grant a petition to rezone property. Section 7.0, Town of Janesville Zoning Ordinance establishes guideline⁵ standards for evaluating changing zoning districts.⁶ Those standards include: (1) the consideration of site design and physical characteristics such as topography, drainage patterns, water, and circulation systems; (2) site location relative to the public road network; (3) land use, such as compatibility with existing or proposed uses in the area, and how the use relates to any existing land use plan and existing or proposed development at nearby interchanges; (4) traffic generation; (5) community effects, including impact on the tax base, how the use relates to scenic and recreation values, and the relation of the use to the public interest, the purpose and intent of the zoning ordinance, and substantial justice to all parties concerned; and (6) any other relevant factors.

¶ 15 Based on our examination of the public hearing transcript and the minutes of the PZC and Town Board meetings held on November 3, 2003, we conclude that the Town Board's decision to rezone the Gehrigs's property from A-1 to A-2 rested on a rational basis and was therefore...