COURT OF APPEALS DECISION DATED AND FILED August 28, 2008 David R. Schanker Clerk of Court of Appeals |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT IV |
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Christine Oltman,
Plaintiff-Appellant, v. Town of
Defendant-Respondent. |
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APPEAL
from an order of the circuit court for
Before Higginbotham, P.J., Dykman and Bridge, JJ.
¶1 PER CURIAM. Christine Oltman appeals from an
order affirming a decision of the Town of
FACTS
¶2 Since 1976 Oltman has owned 99 acres of agricultural land connected to a public road by a 66-foot-wide strip of land. However, Oltman has never used that strip for access, instead permissively using an adjacent owner’s driveway. In 2004, because potential renters or buyers could not rely on the permissive access she used, she applied for a permit to construct her own driveway, either on the 66 foot strip she owned or, alternatively, on a separate strip offered for the purpose by the adjacent owner.
¶3 A series of hearings culminated in a decision to deny her a
permit, the principal reason being that both of Oltman’s proposed driveways
would disturb slopes greater than 25%. A
Town driveway ordinance bars construction of driveways that would disturb a slope
exceeding 25%. Town of
DISCUSSION
¶4 Certiorari review of a municipality’s decision addresses
whether the municipality: (1) kept
within its jurisdiction; (2) proceeded on a correct theory of law;
(3) was not arbitrary, oppressive or unreasonable; and (4) heard
sufficient evidence such that it could reasonably make the determination in
question. Manthe v. Town Bd. of
¶5 Issue 1. Was a permit
to construct a driveway even necessary? The
Town’s permit requirement for driveways does not apply to “field roads,” which
are roads used only for agricultural purposes.
Town of
¶6 Issue 2. Was the
permit decision subject to review as a zoning decision? Oltman contends that the Town made a “zoning
type” determination, subject to review as to whether the decision unreasonably
prevents the owner from using the property for a permitted use. In her case, the permitted use is
construction of a primary farm residence.
However, “‘[z]oning is governmental regulation of the uses of land and
buildings according to districts or zones.’”
Town of Clearfield v. Cushman, 150
¶7 Issue 3. Is the Town’s
slope disturbing limitation superseded by county ordinance? A
¶8 Issue 4. Did the
Town’s refusal to waive its slope disturbing limitation impose an unnecessary
hardship on Oltman? The Town, in its
discretion, may waive the 25% slope restriction if it determines that the
restriction would impose an unnecessary hardship. Town
of
¶9 Issue 5. Was the
Town’s decision reasonable considering all of the reasons given for it? In denying Oltman a permit the Town Board
members mentioned other concerns with her driveway proposal, not necessarily
related to the slope restriction. For
example, one member noted that the proposed driveways crossed agricultural
land. Oltman argues that the evidence
demonstrates that these concerns were unfounded, and that the Town’s decision
was therefore unreasonable. It is not
our function to closely analyze each and every factor in the Town’s
decision. The primary factor in the
decision was plainly the slope restriction, and Oltman does not argue
otherwise. There was also no dispute
that the driveways crossed slopes greater than 25%. We will interfere with a municipality’s
exercise of its police power only where it is clearly unreasonable. Lac La Belle Golf Club v. Lac La Belle,
187
¶10 Issue 6. Should the
trial court have engaged in certiorari review fact finding under Wis. Stat. § 62.23(7)(e)10? This section allows the court on review to
hold an evidentiary hearing and find facts, and Oltman contends that the trial
court should have applied it. However,
it only applies to reviews of zoning decisions, and we have already concluded
that the Town’s decision on the permit was not a zoning decision.
¶11 Issue 7. Did the Town apply the wrong legal standards? Oltman contends that the Town failed to make determinations required by a land division ordinance, a building permit ordinance, and a separate driveway ordinance, all three requiring the Town to consider the impact of a proposed land division, building or driveway on agricultural land. However, Oltman fails to adequately explain why the Town’s purported omissions mattered. None of the ordinances she cites have anything to do with the slope requirements that she failed to meet. None had any bearing on the issue of hardship. Additionally, the Town had no need to consider building or land division issues until after the driveway permit was issued. Oltman informed the Town that the planned division of the land and construction of residences were contingent on permission to build a driveway, and she would not proceed without that permission.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.