WAUPACA COUNTY BOARD OF ADJUSTMENT MEETING
MINUTES –MAY 16, 2014
Vice Chair Craig called the meeting to order at 9:03 a.m. Roll call was taken with the following members present: R. Hoffmann, J. Fulcher, J. Beyer, P. Craig and D. Johnson, all present.
J. Beyer moved and D. Johnson seconded the motion to approve the agenda. The motion was carried.
D. Johnson moved and R. Hoffmann seconded the motion to go into Closed Session by roll call vote pursuant to Wis. Stats. §19.85 (1) (a) and (g) to deliberate concerning a case which is the subject of a judicial or quasi-judicial trial or hearing before that governmental body and to confer with legal counsel for who is rendering oral or written advice concerning strategy to be adopted by the body with respect to litigation in which it is or is likely to become involved. The scope of this meeting will be to address the parties’ arguments on the standard of review.
The Board went into Closed Session at 9:16 a.m. Roll call was taken P. Craig-aye; R. Hoffmann-aye; J. Fulcher-aye; J. Beyer-aye and D. Johnson-aye. The motion was carried.
J. Beyer moved and D. Johnson seconded the motion to reconvene into Open Session at 12:28 p.m. Roll call was taken P. Craig-aye; R. Hoffmann-aye; J. Fulcher-aye; J. Beyer-aye and D. Johnson-aye. The motion was carried. The Board returned to Open Session.
J. Beyer moved and D. Johnson seconded the motion to DENY the Appeal for Grant of Variance due to the following:
Before the Waupaca County Board of Adjustment
Re: Petition for Review by Tania Wadzinski and others of CP-08-2013
Decision:
This matter comes before the Waupaca County Board of Adjustment as an appeal by Tania Wadzinski and others (as reflected in Exhibit A attached to the July 5, 2013 notice of appeal petition) ("the Petition") challenging the Planning and Zoning Committee's decision to issue a conditional use permit ("CUP") to A.F. Gelhar Co., Inc. as requested in its Application dated August 8, 2012.
Appeals to the Board of Adjustment are permitted pursuant to §59.694 (4) Wis. Stats. and Chapter 34, Section 15 of the Waupaca County Ordinances. The issues raised on appeal were initially set forth as follows:
1. The Committee lacked jurisdiction to make a decision in that there were violations of the notice requirements and procedural deficiencies;
2. The Committee failed to follow proper legal standards;
3. The decision was arbitrary, capricious, oppressive and unreasonable, and without basis in law;
4. There was possible bias with Committee members.
WAUPACA COUNTY BOARD OF ADJUSTMENT COMMITTEE MEETING MINUTES –
MAY 16, 2014
5. The Conditional Use Permit Application was incomplete, specifically, but not limited to, location of structures, type of construction, and map and plans of proposed alterations or layout.
6. The Application was also without signed landowner consent, and may have had other deficiencies.
Petition, Ex. D. The issues were later clarified to list the issues as follows:
1. The Conditional Use Permit Application was incomplete, specifically, but not limited to, inadequate descriptions of the location of the structures, type of construction, and map and plans of proposed alterations or layout.
2. The Application was not made by a landowner or with consent, and was deficient pursuant to the Waupaca County Zoning Ordinance.
3. Because of the incomplete Conditional Use Permit Application, the decision by the Committee was procedurally improper.
4. There were procedural violations and notice requirements may not have been met, and therefore, the Committee lacked jurisdiction to make a decision in this matter.
5. The failure of the Town Board to reach a decision and the failure of the Committee to remand this Application back to the town for a decision was in error.
6. The Committee failed to follow the proper legal standards and the Committee was advised by counsel of legal standards that were not proper or correct.
7. The decision by the Committee was arbitrary, capricious, oppressive and unreasonable, and lacked a basis in law.
8. Specific Committee members who were in favor of the Conditional Use Permit may have had bias and may have had financial gain based on the granting of the Conditional Use Permit.
9. Justification by the Committee members for the decision was unreasonable and resulted in the devaluation of the community and specifically the landowners in this area, including Petitioners.
See, Letter of March 14, 2014 from Atty. Hamill on behalf of Petitioners.
Based upon these issues, the Board asked the parties to address the scope of the hearing and the Board's review. Although the Board recognized that it had the discretion under State law to develop a new record in this matter, the Board decided that it would base its decision on a review of the existing record and any additional, new evidence that the parties desired to submit.
Under Wisconsin law the Board has discretion to conduct a de novo review of the Committee's decision. See Zillmer v. Sawyer County Board of Appeal, 2010 WI App 340, ¶6, 337 Wis. 2d 88, 803
WAUPACA COUNTY BOARD OF ADJUSTMENT COMMITTEE MEETING MINUTES –
MAY 16, 2014
N.W.2d 867 (per curiam). The Board's review is also addressed under County Ordinance which limits the Board's review to whether there was error in the underlying decision:
(5) Decisions by the Board of Adjustment: Following a public hearing and other investigation, the Board shall decide the matter based upon whether the decision, determination or interpretation being appealed was in error. The Board may reverse or affirm, wholly or partly, or may modify the appealed decision, and may make such decision as ought to have been made, and to that end shall have all powers of the officer from whom the appeal is taken: All decisions by the Board on Administrative Appeals shall be based upon the terms of the Ordinance and `evidence as to intent of the County Board.
Waupaca Ord., Chap. 34, Section 15.04 2. b.
The Board has determined in its discretion that even if its review was not limited by County Ordinance, it would restrict its review in this matter to whether error occurred in the underlying proceeding as opposed to engaging in a de novo review. The parties had a fair and full opportunity to develop a factual record in the Committee hearings. There has been no allegation that any party was denied the opportunity to present any evidence at those hearings. In order to respect the integrity of the CUP application process, to honor the fairness of the CUP public hearing and evidentiary process, and to conserve the resources of the parties, the County, and the general public, the Board has determined its review in this matter should be limited to reviewing the record as established below, taking new evidence offered by the petitioner or respondent, and then determining whether error occurred in the underlying proceeding. The Board will not determine whether it would have issued the CUP; rather, the Board will review whether it was erroneous for the Committee to have reached its decision that the CUP should be granted.
A hearing was held on May 15, 2014 to hear additional evidence offered by the petitioner and the applicant. The parties offered testimony from numerous witnesses, offered documentary evidence and then presented argument from counsel as to whether error occurred. After careful consideration of the issues raised, the record in the underlying proceeding, the new evidence taken on May 15, 2014 and arguments of counsel, the Board reached the following conclusions as to the issues raised:
1. The Conditional Use Permit Application, was incomplete, specifically, but not limited to, inadequate descriptions of the location of the structures, type of construction, and map and plans of proposed alterations or layout.
The Board has determined that it was not erroneous to conclude that the Application was complete. As set forth in Weber v. Town of Saukville,"... unless a zoning ordinance provides to the contrary, a court should measure the sufficiency of a conditional use application at the time that notice of the final public hearing is first given. Such a rule ensures that interested individuals will have a meaningful opportunity to express informed opinions at the public hearings." 209 Wis. 2d 214, 237-38 (1997). The Waupaca County zoning ordinances do not set forth detailed requirements for a CUP application. Rather, it merely proscribes that:
b. Applications for Conditional Use Permits, Variances, Administrative Appeals, and Applications for Rezonings.
(1) Application and Referral: Applications for Conditional Use Permits, Variances and Administrative Appeals shall be made to the Planning & Zoning Director on forms
WAUPACA COUNTY BOARD OF ADJUSTMENT COMMITTEE MEETING MINUTES –
MAY 16, 2014
prepared by the Planning & Zoning Director and approved as to form and content by the Planning and Zoning Committee. Completed applications shall be referred by the
Planning & Zoning Director to the appropriate committee or board for processing and disposition.
Waupaca County Ord., Chap. 34, Section 14.03 5., b.' As written, the ordinance requires the applicant to complete the application form and to submit it to the Planning and Zoning Director. The ordinance also recognizes that if the Planning and Zoning Director determines that the application is complete it shall be referred to the committee. Here, the Planning and Zoning Director, Ryan Brown, testified that the application was complete. The application itself attached a reclamation plan that listed the location of two types of structures, i.e., wash and drying plants, the topography both before and after mining and other detailed information about the planned use. Under the standard of whether the public had a meaningful opportunity to express informed opinions at the public hearings, the Board does not believe that it was erroneous for the Committee to determine that the application was complete. The public opposition to the CUP and as expressed in this appeal was whether mining should be allowed, not as to the location or type of construction of any buildings.
1 The ordinances have been re-numbered since the application was submitted, but the requirements remain the same. The citation is to the previous version of the ordinance and it is now found at Waupaca County Ord., Chap. 34, Section 15.03 5., b.
Although Petitioners raise an issue that the "type of construction" was not specified, they have not developed any argument as to what is required in regard to listing the "type of construction." One could argue that "type of construction" could mean how something is going to be built, i.e, brick and mortar building, a pole shed, timber frame construction, etc. One could also argue that "type of construction" merely requires one to list the types of building to be constructed. The Board has determined that listing the types of building to be constructed — a washing and drying plant — was sufficient to alert the public to the existence of those structures and to allow the public to voice opposition to such structures at the public hearing. Petitioners have not identified how any more detail was required or how a lack of more detail denied them the opportunity to address that issue.
2. The Application was not made by a landowner or with consent, and was deficient pursuant to the Waupaca County Zoning Ordinance.
The testimony from Roger Henschel at the May 15, 2014 hearing was that he was the one of the property owners and that he had consented to the application for the CUP. The record also established that A.F. Gelhard had a contingent contract to purchase the property if the CUP was granted and was applying for the permit because it would be operating the mine under the CUP. The Board does not find that the application was made without the landowner's consent or that it was otherwise deficient. In fact, it was well known that the A.F. Gelhar application concerned the "Gerald A. & Susan M. Tellock and Roger E. & Geraldine Henschel" property as it was specifically listed as such in the public notice for the CUP hearing.
3. Because of the incomplete Conditional Use Permit Application, the decision by the Committee was procedurally improper.
As set forth above, the Board cannot find that the application was incomplete or improper. Petitioners have not identified any other basis for the allegation that the decision was procedurally improper. Accordingly, the Board cannot find that the decision was procedurally improper for these reasons.
WAUPACA COUNTY BOARD OF ADJUSTMENT COMMITTEE MEETING MINUTES –
MAY 16, 2014
4. There were procedural violations and notice requirements that may not have been met, and therefore, the Committee lacked jurisdiction to make a decision in this matter.
Petitioners did not identify any specific procedural violations or any improper notice requirements in regard to this allegation. Therefore, the Board cannot conclude that the Committee lacked jurisdiction to make a decision in this matter.
5. The failure of the Town Board to reach a decision and the failure of the Committee to remand this Application back to the town for a decision was in error.
On September 12, 2012 the Town Board recommended denial of the CUP and set forth a number of requested conditions if the CUP was approved. This allegation appears to relate to the fact that after receiving the Town's recommendation the Committee requested the Town to clarify whether its comprehensive plan recommended a 200 foot setback or a 2000 foot setback. The Town plan commission recommended that setback be established at 200 feet. The Town's plan commission's recommendation was acted upon by the Town Board. The motion, however, was deadlocked and failed to pass. There is no legal requirement that the Town clarify its position on any matter. Nevertheless, on May 6, 2013 the Town sent the Committee another recommendation that was substantially similar to the first one. Both recommendations were discussed on the record during the CUP application process. Thus, the Town did make a recommendation and the Committee did consider the recommendation. Accordingly, there was no error,
6. The Committee failed to follow the proper legal standards and the Committee was advised by counsel of legal standards that were not proper or correct.
Petitioners did not identify any specific legal standards that were improperly followed or any incorrect advice by legal counsel as to legal standards. Therefore, the Board cannot conclude that there was any error.
7. The decision by the Committee was arbitrary, capricious, oppressive and unreasonable, and lacked a basis in law.
Petitioners did not introduce any evidence to identify how they conclude that the Committee's decision was arbitrary, capricious, oppressive and unreasonable, or how it lacked a basis in law. Petitioners also did not identify how the record from the Committee's proceedings demonstrated that the Committee's decision was arbitrary, capricious, oppressive and unreasonable, or how it lacked a basis in law. The Board has reviewed the record in this matter and notes that there were facts and arguments introduced which would support granting the CUP and there were facts and arguments introduced which would support denying the CUP. In fact, three members of the Committee were persuaded to vote in favor of the CUP and two members were persuaded to vote to deny the CUP. Petitioners have not demonstrated that the Committee's decision was arbitrary, capricious, oppressive and unreasonable, or that it lacked a basis in law.
8. Specific Committee members who were in favor of the Conditional Use Permit may have had bias and may have had financial gain based on the granting of the Conditional Use Permit.
WAUPACA COUNTY BOARD OF ADJUSTMENT COMMITTEE MEETING MINUTES –
MAY 16, 2014
Petitioners did not identify any facts to show that any Committee members were biased or stood to gain financially based on whether the Conditional Use Permit was granted or denied. There is also nothing in the record to suggest that any Committee members were biased or stood to gain financially based on whether the Conditional Use Permit was granted or denied. Therefore, the Board cannot conclude that there was any error.
9. Justification by the Committee members for the decision was unreasonable and resulted in the devaluation of the community and specifically the landowners in this area, including Petitioners.
There was no evidence developed in the original record to support a conclusion that there will be an actual devaluation of any property. Likewise, there was no new evidence introduced to show any actual devaluation of any property. The record reflects that the Committee addressed this issue and weighed the concerns. In fact, the Committee included a condition that specifically preserves the property values. Special condition Number 21 specifically requires that the permit holder is required to purchase any home located within 1/4 mile of the mine property if it has not sold within six months of being listed. Additionally the purchase price of the property is established based upon the average of two independent appraisals to be completed before the mine starts operating, plus ten percent. Thus, the CUP permit specifically addressed this factor and included provisions to protect the valuation of the community and specifically the landowners in this area. The Board cannot conclude that there was error in this regard.
Based upon the above findings and conclusions, the Board has determined that there were no errors in the Committee's decision to issue the CUP in this matter. Petitioners' appeal is therefore DENIED. Roll call vote was taken: P. Craig —yes; J. Fulcher —yes; R. Hoffmann—yes; J. Beyer —yes and D. Johnson —yes, unanimous vote to DENY the Appeal for Grant of Variance request. The motion was carried.
-------------------
D. Johnson moved and R. Hoffmann seconded the motion to adjourn the meeting at 12:30 p.m. The motion was carried.
The Board adjourned.
Respectfully submitted,
Jack Fulcher, Secretary
Waupaca County Board of Adjustment
JF:dg
cc: County Clerk