Weber v. Town of Saukville

• Citation: 562 N.W.2d 412,209 Wis.2d 214
• Decision Date: 29 April 1997
• Docket Number: No. 94-2336,94-2336
• Parties: Merlin WEBER, Barbara Weber, Ryan Weber, Robert Guetchidjian, Jane Guetchidjian and Robert A. Guetchidjian, on their own behalf and on behalf of all others similarly situated, Plaintiffs-Respondents-Cross Appellants, v. TOWN OF SAUKVILLE, Marvin O. Hoffman, Town Supervisor, Albin E. Vande Boom, Town Supervisor and Paul H. Brunnquell, Town Supervisor, Defendants, Payne & Dolan, Inc., Intervening Defendant-Appellant-Cross Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

Page 412

562 N.W.2d 412

209 Wis.2d 214

Merlin WEBER, Barbara Weber, Ryan Weber, Robert

Guetchidjian, Jane Guetchidjian and Robert A. Guetchidjian,

on their own behalf and on behalf of all others similarly

situated, Plaintiffs-Respondents-Cross Appellants, v. TOWN OF SAUKVILLE, Marvin O. Hoffman, Town Supervisor, Albin

E. Vande Boom, Town Supervisor and Paul H.

Brunnquell, Town Supervisor, Defendants,

Payne & Dolan, Inc., Intervening Defendant-Appellant-Cross

Respondent-Petitioner.

No. 94-2336.

Supreme Court of Wisconsin.

Argued Dec. 3, 1996.

Decided April 29, 1997.

For the intervening defendant-appellant-cross respondent-petitioner there were briefs by William F. White, Kimberly Cash Tate and Michael, Best & Friedrich, Madison and oral argument by William F. White.

For the plaintiffs-respondents-cross appellants there was a brief by Alan Marcuvitz, Andrea Roschke and Weiss, Berzowski, Brady & Donahue, Milwaukee and oral argument by Alan Marcuvitz and Andrea Roschke.

Amicus curiae brief was filed by Richard A. Lehmann and Boardman, Suhr, Curry & Field, Madison, for the Transportation Development Association of Wisconsin.

Amicus curiae brief was filed by Donald Leo Bach, Paul G. Kent, Todd Palmer and DeWitt, Ross & Stevens, S.C., Madison, for the Wisconsin Road Builders Association, the National Stone Association, the Aggregate Producers of Wisconsin, the Association of General Contractors, Wisconsin Chapter, and Wisconsin Ready Mixed Concrete Association.

¶1 ANN WALSH BRADLEY, Justice

The defendant, Payne & Dolan, Inc. (Payne & Dolan), seeks review of a published decision of the court of appeals, which affirmed a circuit court summary judgment in favor of plaintiff residents (plaintiffs) of the Town of Saukville (the Town). ¹ Payne & Dolan challenges the court of appeals' conclusion that the Town's zoning ordinance does not authorize a conditional use permit for blasting and crushing in a quarrying operation. The plaintiffs assert that the ordinance prohibits the quarrying operation because of the number of families residing within the area. Because we determine that blasting ¶2 The following issues are presented on review: 1) whether the Town's zoning ordinance empowers the Town Board to issue a conditional use permit which authorizes blasting and crushing as part of a mineral extraction operation; 2) whether operation of the quarry is forbidden under the zoning ordinance proscription against mineral extraction operations where 30 or more families reside within one-half mile of the proposed site; 3) whether the Town complied with the notice requirements prescribed by the zoning ordinance; and 4) whether the conditional use application submitted by Payne & Dolan met the requirements of the zoning ordinance.

and crushing are part of the mineral extraction process, and that the ordinance does not prohibit [209 Wis.2d 219] the proposed quarrying activity, we conclude that the conditional use permit is authorized under the Town's zoning ordinance. However, even though the permit is authorized, we conclude that it is invalid because the Town failed to satisfy a zoning ordinance notice provision, and because the application for the permit was incomplete. Accordingly, we affirm the court of appeals' invalidation of the conditional use permit.

¶3 While our conclusion on the sufficiency of the application issue is dispositive in this case, we nevertheless consider the 30 families, blasting and crushing, and notice issues. These issues may recur in the event that Payne & Dolan reapplies for a conditional use permit. Moreover, because we disagree with the court of appeals' determination that blasting and crushing are not authorized under the Town's zoning ordinance, and because the issue will have statewide impact on mineral extraction operations, we address the question in order to make clear that the Town's ordinance does, in fact, authorize blasting and crushing as part of a quarrying operation.

I. Facts and Procedural History

¶4 The relevant facts are undisputed. Payne & Dolan builds roads and bridges. The company requires a reliable source of aggregate, or crushed stone, for use in its business. Payne & Dolan supplies its need for aggregate with stone extracted from quarries it owns and operates.

¶5 In January 1992, Payne & Dolan submitted a conditional use application form to the Saukville Town Clerk. In its application, Payne & Dolan requested that it be allowed to use blasting and crushing as part of a limestone quarrying operation. At the time of its submission, the application omitted the following information: the quantity of water to be used in the operation, a topographic map showing the depth of proposed quarry excavations, and a restoration plan.

¶6 After receiving the application, the Town Clerk mailed and published notice that the matter would be addressed at a public hearing conducted by the Town's Plan Commission on Tuesday, February 11, 1992. Mailed notice was provided to those persons identified by the Clerk as "residents within one-half mile of the proposed quarry." It is undisputed that there were 36 property owners whose property lines were located within one-half mile of the proposed quarry site. Of this number, 27 resided in dwellings located within one-half mile of the site. Because the Town Clerk notified only "residents," nine owners of property located within one-half mile of the proposed quarry did not receive mailed notice of the public hearing. The Clerk also published notice in the official Town paper on Monday, January 27, 1992, and Thursday, January 30, 1992, unaware that the Town zoning ordinance required that such notice be published once per week for two consecutive weeks.

¶7 Both the published notice and the mailed notice erroneously stated that the public hearing would take place on Tuesday, February 10, 1992, at 8:00 p.m. The actual date of the meeting was Tuesday, February 11, 1992. Realizing his mistake, the Clerk stayed at the Town Hall on Monday, February 10, 1992, from 7:00 p.m. until 8:30 p.m., in order to advise any misinformed attendees of the correct date. No one appeared.

¶8 Approximately 70 residents attended the public hearing the following evening, including all of the plaintiffs in this case. However, several of the property owners who did not receive the earlier mailed notice did not attend the public hearing. At the hearing, residents were allowed to make statements ¶9 During the next nine months, the Town Board and Plan Commission convened meetings, several of which were attended by Town residents, to consider Payne & Dolan's application. ² During that time, Town officials and residents toured Payne & Dolan's existing quarry operations in the City of Franklin, as well as the proposed quarry site in the Town. On November 12, 1992, the Plan Commission voted to recommend granting the conditional use permit. The Town Board voted unanimously to grant the permit on November 17, 1992.

and ask questions of Payne & Dolan representatives. At the regular Plan Commission meeting immediately following the public hearing, action on the conditional use request was tabled until the next meeting. It is undisputed that the February 11, 1992 hearing was the only public hearing on the matter.

¶10 On November 30, 1992, the plaintiffs commenced an action in the circuit court against the Town and its Supervisors. ³ The plaintiffs alleged that in granting the conditional use permit, the Town Supervisors failed to follow the provisions of the Town's zoning ordinance, thus violating their due process rights under the United States Constitution, pursuant to42 U.S.C. § 1983. The defendants removed the case to the United States District Court for the Eastern District of Wisconsin. The district court granted the defendants' motion for summary judgment, dismissing the plaintiffs' federal law claims on the merits and with prejudice, and remanding to the circuit court for further consideration of the alleged zoning ordinance violations.

¶11 On remand to the Circuit Court for Ozaukee County, all parties moved for summary judgment. Granting the plaintiffs' motion for summary judgment, the circuit court invalidated the conditional use permit on the grounds that: 1) the Town's zoning ordinance does not authorize blasting and crushing as methods of mineral extraction; 2) the Town did not substantially comply with the notice provisions of the zoning ordinance; and 3) Payne & Dolan's application did not comply with the provisions of the zoning ordinance. The court also determined that the conditional use satisfied the zoning ordinance requirement that fewer than 30 families reside within one-half mile of the proposed mineral extraction site. ⁴

¶12 Payne & Dolan appealed, and the plaintiffs cross appealed. ⁵ Affirming the decision of the circuit court, the court of appeals concluded that the Town's zoning ordinance does not authorize the issuance of a conditional use permit that allows blasting and crushing as part of a mineral extraction operation. Weber v. Town of Saukville, 197 Wis.2d 830, 541 N.W.2d 221 (Ct.App.1995). The court of appeals did not address the other issues raised by the parties. Payne & Dolan petitioned this court for review.

II. Standard of Appellate Review

¶13 This court reviews a grant of summary judgment using the same methodology as the circuit court. State ex rel. Auchinleck v. Town of LaGrange, 200 Wis.2d 585, 591-92, 547 N.W.2d 587 (1996). Where there are no material facts in dispute, as here, we must determine whether the movant is entitled to judgment as a matter of law. Id. at 592, 547 N.W.2d 587.

¶14 This case requires us to interpret provisions of the Town of Saukville, Wis., Zoning Ordinances (1984). Both parties and amici agree that the ordinance provisions relevant in this case are substantially similar to those in communities across the state, and that our interpretation may therefore have a statewide impact on mineral extraction...