COURT OF APPEALS DECISION DATED AND RELEASED March 6, 1997 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 96-0102
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JAMES R. KERSTEN and
SUGAR CREEK CAMPER
SALES, INC.,
Plaintiffs-Appellants,
v.
BOARD OF ADJUSTMENT OF
THE TOWN OF FULTON,
Defendant-Respondent.
APPEAL from an order of
the circuit court for Rock County:
PATRICK J. RUDE, Judge. Affirmed.
Before Dykman, P.J.,
Roggensack and Deininger, JJ.
PER
CURIAM. James R. Kersten and Sugar Creek Camper Sales, Inc.,
appeal from an order affirming a zoning decision by the Town of Fulton Board of
Adjustment. The issues are whether the
appellants' use of the land was permitted under a prior ordinance and, if not,
whether the board erred in denying their application for a conditional use
permit. We conclude that the use was
not permitted and the board did not err.
We therefore affirm.
The appellants' goal is
that the sale of recreational vehicles be a legal use of the property in
question. The property was used for
that purpose starting in 1992. The
appellants argued to the board that such use was permitted under the ordinance
in effect at that time. The ordinance
designated the property as part of a commercial highway interchange
district. Permitted uses included,
among others, gas stations, auto repair shops, businesses leasing passenger
autos, hotels and motels, restaurants and commercial parking lots. Most relevant to this appeal, permitted uses
also included "[t]ourist-oriented retail shops, including souvenir shops,
gift shops, and flea markets" and "[e]stablishments engaged in the
daily or extended term rental or leasing of house trailers, mobile homes, or
campers." Sales of such vehicles
were not addressed.
The appellants argue the
board erred by concluding that their use of the property was not allowed as a
"tourist-oriented retail shop."
The parties disagree about the degree of deference to which the decision
is entitled. However, even if the
decision is entitled to no deference, we agree with the board's
conclusion.
The appellants' argument
fails most significantly on the question of whether their business is
"tourist-oriented." They
argue that it is oriented toward "persons who make tours" and may be
more tourist-oriented than a flea market, which is an example of a business the
board has permitted as "tourist oriented." However, the phrase "tourist" usually means persons who
are in the act of traveling, rather than persons who intend to travel at some
later time in their new recreational vehicle.
If the latter definition were accepted, anyone who intends to travel in
the future would be a tourist. A more
reasonable reading is that tourists are those visiting or passing through the
area. This is consistent with the
purpose of the interchange district to "provide facilities to serve the
traveling public at locations along federal and state highway routes" and
is consistent with the other uses allowed in the district.
Furthermore,
if the drafters of the ordinance had intended to allow sales of recreational
vehicles, they most likely would have said so in the same provision in which
they allowed the rental and leasing of such vehicles. No rational drafter would assume that the intent to allow sales
would be gleaned from that provision's silence on the subject and the separate
provision for "tourist-oriented retail shops." A more reasonable conclusion is that the
intent was to exclude the sale of recreational vehicles.
After 1992, the zoning
ordinance was amended to delete the rental and leasing of recreational vehicles
as a permitted use and to allow the rental, leasing or sale of such vehicles as
a conditional use. The appellants then
applied for a conditional use permit.
The board denied the application.
The appellants petitioned for certiorari review and have appealed the
circuit court's affirmance of the board.
Review on certiorari is
limited to whether: (1) the board
kept within its jurisdiction; (2) it acted according to law; (3) its
action was arbitrary, oppressive or unreasonable and represented its will and
not its judgment; and (4) the evidence was such that it might reasonably
make the order or determination in question.
Coleman v. Percy, 96 Wis.2d 578, 588, 292 N.W.2d 615, 621
(1980). The appellants argue that the
board's decision should be reversed on both the third and fourth grounds.
The appellants argue
that the board's decision represented its will and not its judgment. They argue that this is demonstrated partly
by the board's failure to make written findings, although they acknowledge such
findings are not required. They also
argue that it is demonstrated by the procedure that was followed on the application. After hearing testimony, the board members
each made a statement of their views on the subject. A motion on the application was then placed on the floor and
voted upon without further discussion.
The board voted 3-2 to deny the permit.
The appellants argue that because there was no discussion about the
motion and there was "no consensus on reasons for denial," the
decision was made without a reasoning process.
We reject the argument. The
appellants cite no authority requiring either that the motion precede the board
members' expression of views or that the members reach a consensus on the
reasons for denial.
The appellants argue
that even if we accept the statements of the individual board members as the
reasoning of the board as a whole, those statements show that the decision was
arbitrary. We disagree. The applicable town ordinance provides the
following guidelines: appearance,
compatibility with existing uses in the area, relation to any existing land use
plan, immediate and long-range tax base,[1]
relation to scenic values, and relation to the public interest and purpose of
the ordinance. While not every word
spoken by each board member was relevant, each board member made a coherent
statement as to at least one relevant factor.
Their most relevant concerns were that the sale of recreational vehicles
would detract from Kersten's nearby travel trailer park and that the location
in question should be used for a business that would serve a larger portion of
the traveling public. These concerns
were appropriate under the specific standards for granting conditional use
permits.
The appellants argue
that the board acted oppressively and unreasonably by employing an attorney
both to advise the board and to advocate for denial of the permit. Their argument is based on writings,
comments and cross-examination by the attorney that demonstrated his belief
that the permit should be denied. The
appellants attempt to analogize this case to ones in which a board
chairperson's comments indicated predisposition[2]
and in which an attorney who had been involved as an advocate for one side in a
dispute later became a commissioner.[3]
We reject the
argument. In both cited cases it was a
decisionmaker whose conduct was at issue, not the attorney advising the
decisionmakers. Nothing in this case
shows the board had any improper bias or conflict of interest. Nor do the opinions of the attorney provide
grounds for reversal. The appellants
cite no authority for the proposition that an attorney in such a position is
precluded from informing the board of his or her opinion on the merits of the
decision before it.
The appellants also
argue that the board's decision was supported by "nothing" in the
record. We apply the substantial
evidence test, that is, whether reasonable minds could arrive at the same
conclusion. See State ex rel.
Richards v. Traut, 145 Wis.2d 677, 680, 429 N.W.2d 81, 82 (Ct. App.
1988).
We conclude that the
decision was sufficiently supported. As
stated above, the board's main concerns were that the sale of recreational
vehicles would detract from the nearby trailer park and that the location in question
should be used for a business serving a larger portion of the public. These concerns were supported by, among
other things, photographs of the area, maps showing the limited amount of area
in the interchange district, testimony from citizens about the effect of the
proposal on the aesthetics of the area, and the applicant's testimony that the
business draws only thirty-five to forty cars per week.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.