Step Now Citizens v. PLANNING & ZONING

• Court: Wisconsin Court of Appeals
• Citation: Step Now Citizens v. PLANNING & ZONING, 264 Wis.2d 662, 2003 WI App 109, 663 N.W.2d 833 (Wis. App. 2003)
• Decision Date: 16 April 2003
• Docket Number: No. 02-2760.,02-2760.
• Parties: STEP NOW CITIZENS GROUP, Gregory & Kristin Armstrong, Robert Bruss, Gary Eake, John & Lucia Franzen, Edwin Gallatin, Jr. & Debra Gallatin, Gambrinus Enterprises d/b/a Utica Golf Course, Mark Haslanger, Carrol & Elaine Josephson, Jane Josephson, Mike & Sandy Miller, Scot Nerenhausen, Richard Oelschlager, Arthur & Alison Pontynen, Fred & Susan Rosenmeier, Sandra Schaetz, Doug & Sheila Schoenfeldt, Joy Smith, Kurt & Cindy Sorenson, Jeff White, Ronald & Donna Wiles, Mike Willeford & David Willeford, Plaintiffs-Respondents-Cross-Appellants, v. TOWN OF UTICA PLANNING & ZONING COMMITTEE, Town Board of the Town of Utica, Town of Utica Town Clerk, Winnebago County and Winnebago County Board of Supervisors, Defendants-Co-Appellants-Cross-Respondents, Robert POTRATZ, Marilyn Potratz and Algoma Ethanol, LLC, Defendants-Appellants-Cross-Respondents.

264 Wis.2d 662

2003 WI App 109

663 N.W.2d 833

STEP NOW CITIZENS GROUP, Gregory & Kristin Armstrong, Robert Bruss, Gary Eake, John & Lucia Franzen, Edwin Gallatin, Jr. & Debra Gallatin, Gambrinus Enterprises d/b/a Utica Golf Course, Mark Haslanger, Carrol & Elaine Josephson, Jane Josephson, Mike & Sandy Miller, Scot Nerenhausen, Richard Oelschlager, Arthur & Alison Pontynen, Fred & Susan Rosenmeier, Sandra Schaetz, Doug & Sheila Schoenfeldt, Joy Smith, Kurt & Cindy Sorenson, Jeff White, Ronald & Donna Wiles, Mike Willeford & David Willeford, Plaintiffs-Respondents-Cross-Appellants, v. TOWN OF UTICA PLANNING & ZONING COMMITTEE, Town Board of the Town of Utica, Town of Utica Town Clerk, Winnebago County and Winnebago County Board of Supervisors, Defendants-Co-Appellants-Cross-Respondents, Robert POTRATZ, Marilyn Potratz and Algoma Ethanol, LLC, Defendants-Appellants-Cross-Respondents.

No. 02-2760.

Court of Appeals of Wisconsin.

Oral argument February 26, 2003.

Decided April 16, 2003.

On behalf of the defendants-appellants-cross-respondents Robert Potratz and Marilyn Potratz, the cause was submitted on the briefs of Richard J. Carlson of Silton, Seifert, Carlson, Gamble & Schubert, S.C., Appleton. On behalf of the defendant-appellant-cross-respondent Algoma Ethanol, LLC and joined by defendants-co-appellants-cross-respondents Winnebago County and Winnebago County Board of Supervisors, the cause was submitted on the briefs of Eric M. McLeod and Edward J. Pardon of Michael, Best & Friedrich, LLP, Madison. On behalf of the Potratzes and Algoma Ethanol, LLC, there was oral argument by Richard J. Carlson.

On behalf of the defendants-co-appellants-cross-respondents Town of Utica Planning & Zoning Committee, Town Board of the Town of Utica, and Town of Utica Town Clerk, the cause was submitted on the briefs of Raymond J. Pollen and Ryan G. Braithwaite of Crivello, Carlson & Mentkowski, S.C., Milwaukee. There was oral argument by Ryan G. Braithwaite.

On behalf of the plaintiffs-respondents-cross-appellants, the cause was submitted on the briefs of Edward R. Garvey, Glenn M. Stoddard and Diane L. Milligan of Garvey & Stoddard, S.C., Madison. There was oral argument by Glenn M. Stoddard.

Before Brown, Anderson and Snyder, JJ.

¶ 1. SNYDER, J.

The Town of Utica Planning & Zoning Committee, the Town Board of the Town of Utica, the Town of Utica Town Clerk (collectively, the Town), Winnebago County and the Winnebago County Board of Supervisors (collectively, the County), Robert and Marilyn Potratz (the Potratzes) and Algoma Ethanol, LLC (Algoma) all appeal a judgment of the circuit court that reversed the County's vote to amend a zoning ordinance adopted by the Town, concluding that the rezoning constituted illegal spot zoning. The ordinance amended the zoning of the Potratzes' property from Agricultural to Industrial to allow construction and operation of an ethanol plant on the property. The Potratzes, the Town, the County and Algoma argue that the Town's and the County's decisions do not constitute illegal spot zoning. We agree and reverse this portion of the judgment of the circuit court and reinstate the Town's and County's decisions.

¶ 2. Step Now Citizens Group (Step Now) is an unincorporated association comprised of adult citizens of Wisconsin who reside and/or own real estate in the Town of Utica and/or Winnebago county who are potentially affected by land use, zoning and land development decisions of the Town and the County. Step Now cross-appeals, arguing that the rezoning of the Potratz property is null and void because the Town failed to follow necessary notice requirements, failed to comply with WIS. STAT. § 91.77 (2001-02)¹ and issued the building permit in error. We disagree and affirm that portion of the judgment.

FACTS

¶ 3. Algoma proposes to build a $36 million plant for the production of ethanol on the north twenty-four acres of the northwest quarter of the northeast quarter of section 1 in the Town of Utica. The parcel, located adjacent to State Trunk Highway 91 in a predominantly rural area devoted to agricultural use, is owned by the Potratzes. On October 15, 2001, the Potratzes petitioned the Town to change the zoning classification of the property from Agricultural District to Industrial District for use as an ethanol plant. The petition was referred to the Town of Utica Planning & Zoning Committee (PZC) for study, hearing and recommendation to the Town Board.

¶ 4. The Town held three public informational meetings. The Town provided a venue for these three meetings which were held on October 24, November 1 and November 15, 2001. An Algoma representative presented information at these meetings to educate the public with experts on groundwater, plant design, traffic, engineering and site design, rail service and economics.

¶ 5. One Town Board member and two PZC members flew to visit an operating ethanol plant in Minnesota sometime in October 2001. Sometime in October 2001, Robert Potratz contacted the Town Chairman to see if any town officials wanted to visit an operating ethanol plant. A public relations person for Algoma accompanied the Potratzes, a Town Board member and two PZC members on the visit. On the return plane ride from the plant, the Town Board member stated that the passengers reviewed literature about ethanol manufacturing.

¶ 6. The PZC was initially scheduled to hold a public hearing on the request for rezoning on December 6, 2001, but the meeting was adjourned. The PZC hearing was rescheduled for January 3, 2002. On January 3, 2002, the PZC held a public hearing on the Potratz petition. After nearly three hours of hearing public testimony, the PZC considered and discussed the following issues: site plan, odor emissions, noise and traffic considerations, employment and tax base consequences, fire control considerations, water considerations, and the effects on future objectives of Town planning.

¶ 7. The PZC concluded that the site visit to Minnesota established that odors would be slight and limited in geographic scope and that noise would be modest inside the plant and minimal outside the plant. The PZC further concluded that traffic counts established that there was room for additional traffic on State Trunk Highways 44 and 91 to accommodate periodic traffic to and from the plant. The PZC noted that the proposed plant is a decentralized agricultural industry located in an agricultural area. The PZC made tax base comparisons between the number and type of residences needed to provide equivalent taxes.

¶ 8. The Town Land Use Plan (the Plan) was also discussed. A PZC member believed that the Plan was a "social contract" with the residents of the Town of Utica and that the area in question is shown as agricultural and not industrial; another PZC member believed that the Plan was only a proposed plan when it was adopted and that changes had been made since it had been adopted. At the public hearing, a member of the PZC introduced an addendum that the Potratzes had requested be part of the rezoning application. This addendum contemplated a zoning change back to Agricultural if Algoma failed to build on the property in question.

¶ 9. The PZC voted to recommend to the Town Board to approve the Potratz petition to rezone the property to Industrial, provided that the property revert back to Agricultural if federal and state agency approvals and permits and favorable groundwater test results were not obtained within eighteen months.

¶ 10. The Amendatory Ordinance drafted on behalf of the Town after the January 3, 2002 PZC hearing and before the January 14, 2002 Town Board meeting specifically identifies Robert Potratz as the owner of the land being rezoned and identifies an ethanol manufacturing plant as the proposed use. The Ordinance also states:

WHEREAS, while the property described herein is suitable and appropriate for an ethanol manufacturing plant, the property may not be appropriate generally for other uses that are permitted or permissible in the Industrial District in the event that required approvals, permits and favorable test results are not obtained in connection with the plant and the property[.]

The draft ordinance contains the recommended addendum, that the property revert back to Agricultural if the required federal and state agency approvals, permits and favorable test results are not obtained within eighteen months.

¶ 11. On January 14, 2002, the Town Board voted 2-1 to adopt the ordinance rezoning the property from Agricultural to Industrial. Again, the Plan was discussed. The Town Supervisor again argued that if the Town Board approved a rezone for a use inconsistent with the Plan, the Town Board would be jeopardizing the integrity of the Plan as a foundation for future land use decisions.

¶ 12. The Town Board found, among other things, that the ethanol plant is complementary to farming and the existing agricultural economy of the Town of Utica and that the proposed site of the ethanol plant would enable safe and convenient access for the delivery of agricultural commodities to the plant and the transportation of products from the plant.

¶ 13. The Town Board also found that while the property is suitable and appropriate for use as an ethanol plant, the property may not be appropriate generally for other uses that are permitted in an Industrial District in the event that required federal and state approvals, permits and favorable groundwater test results are not obtained. Consequently, the Amendatory Ordinance provides that the property will revert back to Agricultural District in the event the approvals, permits and favorable test results are not obtained within eighteen months. In essence, the Town Board incorporated the recommendations of the PZC.

¶ 14. Winnebago County has a county zoning ordinance. Pursuant to WIS. STAT. § 60.62(3), no town zoning ordinance or amendment of a zoning ordinance may be adopted unless approved by the County Board...