PUBLISHED OPINION
Case No.: 94-0812
94-0813
94-0814
94-0815
†Petition to
review filed
Complete Title
of Case:
No. 94-0812
CITY OF WAUKESHA,
Plaintiff-Respondent,
v.
TOWN BOARD OF THE TOWN OF
WAUKESHA, PLAN COMMISSION
OF THE TOWN OF WAUKESHA,
JONDEX CORPORATION and
GEORGE EAGAN, JR.,
Defendants-Appellants.†
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No. 94-0813
W.T. CORPORATION and
WAUKESHA COUNTY,
Plaintiffs-Respondents,
v.
THE TOWN OF WAUKESHA,
THE PLAN COMMISSION OF
THE TOWN OF WAUKESHA,
THE TOWN BOARD OF THE
TOWN OF WAUKESHA,
GEORGE EGAN, JR., and
JONDEX CORPORATION,
Defendants-Appellants.†
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No. 94-0814
ROYAL C. NEUMANN,
Plaintiff-Respondent,
v.
TOWN OF WAUKESHA and
TOWN OF WAUKESHA PLAN
COMMISSION,
Defendants-Appellants,†
WAUKESHA COUNTY,
Defendant-Respondent.
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No. 94-0815
ROYAL C. NEUMANN and
WAUKESHA COUNTY,
Plaintiffs-Respondents,
v.
TOWN OF WAUKESHA,
TOWN OF WAUKESHA
PLAN COMMISSION and
JONDEX CORPORATION,
Defendants-Appellants.†
Oral Argument: March 10, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: December 6, 1995
Opinion Filed: December 6, 1995
Source of APPEAL Appeals
from judgments
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Waukesha
(If "Special", JUDGE: PATRICK L. SNYDER
so indicate)
JUDGES: Brown,
Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the defendants-appellants, there were briefs and oral arguments by James
W. Hammes of Cramer, Multhauf & Hammes of Waukesha.
Respondent
ATTORNEYSOn
behalf of the plaintiff-respondent City of Waukesha, there was a brief and oral
arguments by Curt R. Meitz, city attorney.
On
behalf of the plaintiff-respondent W.T. Corporation, there was a brief and oral
arguments by Scott V. Lowry of Waukesha.
On
behalf of the plaintiff-respondent Waukesha County, there were briefs and oral
arguments by William J. Domina, assistant corporation counsel.
On
behalf of the plaintiff-respondent Royal C. Neumann, there were briefs by James
L. Steimel and James L. Dunlap of Steimel & Dunlap, S.C. of
Waukesha. There were oral arguments by James
L. Steimel.
COURT OF APPEALS DECISION DATED AND RELEASED December 6, 1995 |
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. |
Nos. 94-0812
94-0813
94-0814
94-0815
STATE
OF WISCONSIN IN COURT OF
APPEALS
No. 94-0812
CITY OF WAUKESHA,
Plaintiff-Respondent,
v.
TOWN BOARD OF THE TOWN
OF
WAUKESHA, PLAN
COMMISSION
OF THE TOWN OF WAUKESHA,
JONDEX CORPORATION and
GEORGE EAGAN, JR.,
Defendants-Appellants.
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- - - - - - - - - - - - - - - - - - - - - -
No. 94-0813
W.T. CORPORATION and
WAUKESHA COUNTY,
Plaintiffs-Respondents,
v.
THE TOWN OF WAUKESHA,
THE PLAN COMMISSION OF
THE TOWN OF WAUKESHA,
THE TOWN BOARD OF THE
TOWN OF WAUKESHA,
GEORGE EGAN, JR., and
JONDEX CORPORATION,
Defendants-Appellants.
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No. 94-0814
ROYAL C. NEUMANN,
Plaintiff-Respondent,
v.
TOWN OF WAUKESHA and
TOWN OF WAUKESHA PLAN
COMMISSION,
Defendants-Appellants,
WAUKESHA COUNTY,
Defendant-Respondent.
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No. 94-0815
ROYAL C. NEUMANN and
WAUKESHA COUNTY,
Plaintiffs-Respondents,
v.
TOWN OF WAUKESHA,
TOWN OF WAUKESHA
PLAN COMMISSION and
JONDEX CORPORATION,
Defendants-Appellants.
APPEALS from judgments
of the circuit court for Waukesha County:
PATRICK L. SNYDER, Judge. Affirmed.
Before Brown, Nettesheim
and Snyder, JJ.
SNYDER, J. The
Town of Waukesha (Town) appeals from trial court judgments reversing the grant
of a conditional use permit (permit) under the Town's planned unit development
(PUD) ordinance.[1] The permit allowed for the commercial
development of a 106,000 square-foot shopping center and strip mall contrary to
the parcel's existing zoning. This parcel
is in an area zoned R-3 (residential) and I-1 (limited industrial). The Town raises four issues on appeal: (1) whether the PUD ordinance is valid and
enforceable, (2) whether this ordinance authorizes the Town Board of the Town
of Waukesha (Town Board) to approve a PUD as a conditional use, (3) whether the
action of the Town Board in issuing the permit was arbitrary and unreasonable
and (4) whether the City of Waukesha (City) has standing to bring an action
contesting the issuance of the permit.[2] Because we conclude that the PUD ordinance, Town of Waukesha, Wis., Code
§ 11.11(i)(14), under which the conditional use permit was granted was
invalid and void, we affirm.
On June 27, 1979, the
Town Board enacted a zoning ordinance in accordance with the provisions of §
62.23, Stats. That ordinance zoned the parcel at issue
residential and limited industrial. In
the spring of 1990, an application was filed with the Town to rezone the parcel
to a B-2 (local business) designation.
The Town Board held a public hearing and subsequently adopted an
ordinance rezoning the parcel as requested.
The B-2 designation allows commercial development. See Town
Code § 11.34.
In order to complete the
rezoning process, the approval of the county board of supervisors (county
board) was required. See §
60.62(3), Stats. After the Town submitted the rezoning for
consideration, the county board requested further information. Before the rezoning could be resubmitted,
the City, which opposed the rezoning, adopted an extraterritorial zoning
ordinance. This had the legal effect of
placing a two-year “freeze” on any kind of zoning changes to any unincorporated
property within three miles of the corporate limits of the city. See § 62.23(7a), Stats.
Because of the parcel's location—an “island” surrounded by city
property—the freeze effectively blocked the Town's attempt to rezone the
parcel. After the adoption of the extraterritorial
ordinance by the City, the Town's request for rezoning was never taken to the
county board for approval.
In January 1993, the
Town Board amended several sections of its zoning code, including an amendment
to Town Code § 11.11(i)(14), a
paragraph of the conditional uses section.
The amendment changed the title of this paragraph from “Residential
Planned Unit Developments” to “Planned Unit Developments,” and also included
significant changes in the provisions of the section. All of the proposed amendments were unanimously approved by the
county board, as required by § 60.62(3), Stats.
Several months later,
George Egan, Jr. and Jondex Corporation made application to the Town for a
conditional use permit which would authorize a commercial PUD on the same
parcel that had been the subject of the earlier rezoning attempt. Under the amended section of the Town's
zoning code, a commercial PUD could be approved as a conditional use in any
district, as long as certain underlying conditions were met.[3] As a condition of approval, the Town was to
receive $300,000 from the developers if the conditional use permit were
granted.
The Plan Commission of
the Town of Waukesha (Plan Commission) and the Town Board conducted a public
hearing on the permit as mandated. See
Town Code § 11.11(c). Following the hearing, the Plan Commission
determined that all conditions identified in the zoning ordinances for the
issuance of the permit had been satisfied.
See Town Code §
11.11(d). The Plan Commission
recommended that the Town Board grant the requested permit, which it did.
The City then filed a
claim[4]
for a writ of certiorari to review the actions of the Plan Commission and the
Town Board, and requesting a judgment reversing the issuance of the permit and
a finding that the action of the Town Board was “illegal, arbitrary,
capricious, [and] unreasonable.” The
City's second claim was for a declaratory judgment, pursuant to § 806.04, Stats., to declare that the issuance of
a conditional use permit for a commercial PUD in a residential zoning district
was illegal, void and contrary to law.
The trial court found
that the action of the Town in issuing a permit under this ordinance was
invalid in that the granting of a conditional use permit for a commercial PUD
in a residential district was a “de facto rezoning” of the property. The trial court further held that Town Code § 11.11(i)(14) was invalid
and void. This appeal followed.
The parties to this
consolidated appeal have raised various issues and offer varying arguments with
respect to the trial court's decision.
If a decision on one point disposes of an appeal, this court need not
decide other issues raised. See Sweet
v. Berge, 113 Wis.2d 61, 67, 334 N.W.2d 559, 562 (Ct. App. 1983). Those arguments pertinent to our analysis
will be addressed as applicable.
The dispositive issue
requires this court to review and interpret the validity of a zoning
ordinance. The construction and
application of an ordinance to a particular set of facts is a question of law
which we review de novo. Eastman
v. City of Madison, 117 Wis.2d 106, 112, 342 N.W.2d 764, 767 (Ct. App.
1983). The rules for the construction
of statutes and ordinances are the same.
County of Sauk v. Trager, 113 Wis.2d 48, 55, 334 N.W.2d
272, 275 (Ct. App. 1983), aff'd, 118 Wis.2d 204, 346 N.W.2d 756 (1984). We begin with the premise that a zoning
ordinance enacted pursuant to § 62.23, Stats.,
is presumed to be valid and must be liberally construed in favor of the
municipality. Bell v. City of
Elkhorn, 122 Wis.2d 558, 568-69, 364 N.W.2d 144, 149 (1985). An alleged invalidity must be clearly shown
by the party attacking the ordinance. Id.
at 569, 364 N.W.2d at 149.
The ordinance in
question is a subsection of § 11.11 of the Town
Code entitled “Conditional Uses.”
It states in relevant part:
CONDITIONAL USES. Conditional uses and their accessory uses
are considered as special uses requiring review, public hearing and approval by
the Town Plan Commission in accordance with the regulations of this section.
....
(d) Basis of Approval. The determination of such conditional use
shall be by the bodies hereinafter designated and shall be based on
consideration of whether or not the proposed use will violate the spirit and
intent of the ordinance; ....
....
(i) Conditional Uses Permitted. Subject to the foregoing, in addition to
such uses enumerated in the district regulations, the following may be
permitted in the districts specified, ....
....
(14)
Planned Unit Developments: Due
to the increased urbanization and the associated greater demands for open
space, it is herein provided that there be flexibility in the regulations
governing the development of land. This
provision is intended to encourage Planned Unit Development in directions which
will recognize both the changes in design and technology in the building
industry, and the new demands in the market. ...
....
D.
After all conditions of a Planned Unit Development project are certified
by the Town as being completed, the conditional use status of such completed
development shall be changed to a permitted use in the district in which it is
located.
This amended portion,
beginning with paragraph (14), was enacted in January 1993 by the Town Board
and presented to the county board for approval.[5] See § 60.62(3), Stats.
This amendment received unanimous approval. Although the statutory mandates for amending the zoning ordinance
were followed, the trial court determined that the dispositive issue was the
validity of the amendment. We
agree. In our de novo review of the
validity of this ordinance, we first consider the concept of a “conditional
use.”
Conditional uses enjoy
acceptance as a valid and appropriate means of municipal planning on virtually
a universal scale. State ex rel.
Skelly Oil Co. v. Common Council, 58 Wis.2d 695, 700, 207 N.W.2d 585,
587 (1973). Conditional uses are
flexibility devices designed to cope with situations where a particular use,
though consistent with the use classification of a specific zone, may create
special problems if allowed to locate as a matter of right in a particular
district. Id. at 700‑01,
207 N.W.2d at 587. A conditional use
permit allows a property owner to put property to a use which the ordinance expressly
permits when certain conditions have been met. Id. at 701, 207 N.W.2d at 587.
A conditional use is
further defined when contrasted to a “variance.” A variance “authorizes a particular property owner to use his
property in a manner which is prohibited by the ordinance when not to be
able to do so would be a hardship.” Id.
The Town's amended
ordinance allowed the Town to approve any type of PUD (residential, commercial
or mixed use) as a conditional use. A
PUD is a planning device employed to control the development of a large tract
of land. 2 Robert M. Anderson, American Law of Zoning 3d § 11.01, at 418
(1986). A PUD ordinance commonly
authorizes a planned mix of residential, commercial and even industrial
uses. This planned mix of uses is
allowed subject to restrictions which are calculated to achieve compatible use
of the land. Id. § 11.12,
at 443. PUDs were intended to be “a
flexible approach to the regulation of land use without sacrificing the values
which zoning was intended to preserve.”
See id. § 11.12, at 444.
The most common type of
PUD ordinances provide for the creation of such a district through a two-step
legislative process. Id.
§ 11.15, at 451. An initial ordinance
describes a PUD district and outlines the enactment procedure. The actual creation of the district is
commonly accomplished by a second legislative act—an amendment to the zoning
ordinance. Id.
§ 11.15, at 451-52. This second
step is normally preceded by a full review of the plans by a planning board.
In this case, the
ordinance at issue allowed the Town Board, without any zoning district
restrictions, to authorize a PUD through the grant of a conditional use
permit. A conditional use must be
consistent with the use classification of a particular zone. See Skelly Oil, 58
Wis.2d at 701, 207 N.W.2d at 587. By
failing to require that an approved PUD be in harmony with the zoning
restrictions of the underlying district, the ordinance allowed the Town Board
to approve a PUD in any district.
The Town argues that
commercial development is permitted as a conditional use in a residential
district because Town Code §
11.31(a)(2) (conditional uses in a R-3 district) clearly incorporates Town Code § 11.11(i)(14) (the PUD
ordinance) as a conditional use. The
Town contends that this authorizes the Town Board to approve conditional use
permits which allow the construction of commercial PUDs in a residential
district.[6] We disagree.
In Gordie Boucher
Lincoln-Mercury Madison, Inc. v. City of Madison, 178 Wis.2d 74, 503
N.W.2d 265 (Ct. App. 1993), this court stated that “the very essence of zoning
is the territorial division of land into use districts ¼ and
uniformity of use.” Id.
at 93, 503 N.W.2d at 271 (quoted source omitted). An ordinance which includes pervasive regulation of the use of
land “must be surrounded with the substantive and procedural safeguards which
zoning requires.” Id. at
94, 503 N.W.2d at 272. Control over the
use of property is a zoning control which can only be imposed by a
comprehensive zoning ordinance which comports with statutory guidelines. See id. at 101-02, 503
N.W.2d at 275.
Implicit in the
designation of an area as a PUD is the approval of the use that a developer
seeks to make of a particular piece of property. A PUD will show a mix of uses:
mixed residential uses, usually some commercial uses, and possibly even
industrial uses. Anderson § 11.12, at 445. An ordinance allowing a local plan
commission to authorize a PUD as a conditional use must specify particular
areas for the placement of any proposed PUD, and the placement must comport
with the zoning restrictions of the designated districts. The town ordinance was deficient in this
regard.
In this case, because a
PUD was designated a conditional use and because the amended ordinance did not
restrict or define the zoning districts in which a PUD might be placed,[7]
the Town Board was able to approve a conditional use permit which allowed the
development of a commercial strip mall in an area zoned residential and limited
industrial. Under the guise of a
conditional use, the Town Board in essence rezoned without seeking the
necessary approval of the county board.
See § 60.62, Stats.
In further support of
this, we note that Town Code §
11.11(i)(14)D. specifies that once a PUD project is certified by the Town as
complete, “the conditional use status of such completed development shall be
changed to a permitted use in the district in which it is located.” Upon completion, an approved PUD, embracing
a use not allowed by the more restrictive classification of the underlying
district, would become a permitted use.
In actual practice, the zoning of the affected district would be changed
to accommodate the PUD.
We conclude that the
amended PUD ordinance, which allowed for the placement of a PUD in any district[8]
subject only to the approval of the Town Board as a conditional use, allowed
the Town to rezone without the mandated safeguards of county board
approval. The PUD ordinance is an
invalid exercise of the Town Board's zoning authority.
The only remaining
consideration is whether the ordinance as a whole is invalid and void, or
whether there remains a valid and severable portion of this ordinance. In determining the validity of a zoning
ordinance, each case must be decided on its own facts. Eggebeen v. Sonnenburg, 239
Wis. 213, 220, 1 N.W.2d 84, 87 (1941).
If a statute consists of separable parts and the offending portions can
be eliminated and still leave provisions capable of being carried out, the
valid portions must stand. Stahl
v. Town of Spider Lake, 149 Wis.2d 230, 236, 441 N.W.2d 250, 252 (Ct.
App. 1989). However, it is also an
accepted rule of construction that if there appears to be reason from the act
itself for the conclusion that it was intended as a whole and the legislative
body would not have enacted the valid part alone, in that instance if one is
void the whole is void. Katt v.
Village of Sturtevant, 269 Wis. 638, 641‑42, 70 N.W.2d 188, 190
(1955).
Here, the record
provides ample evidence that this ordinance was enacted as a whole in an
attempt to allow this commercial development to go forward in an area which was
too restrictively zoned. In the
findings of fact, the trial court noted that:
(1) the Town was at all times predisposed to grant the conditional use
and was an initiator in creating a procedure to accommodate the proposed use,
(2) the Town was predisposed to grant the conditional use prior to receiving
any testimony at the public hearing, (3) all comments from the Town's
representatives at the hearing were adversary and partial, (4) the City's
rational explanation for its opposition was totally ignored, (5) there was a
proposed payment by the developer of $300,000 once the project was approved,
(6) there was the potential for annexation by the City of the parcel in
question and subsequent loss of reimbursement and (7) there had been a blocked
attempt to rezone the property several years earlier.
We conclude that the PUD
ordinance, Town Code §
11.11(i)(14), is void and invalid in its entirety. The factual findings of the trial court clearly support the view
that the Town Board would not have enacted this ordinance other than in its
entirety. The post-enactment chain of
events strongly indicates that the Plan Commission had a specific objective in
amending the PUD ordinance.
Based on our conclusion
that the PUD ordinance is void and invalid, we need not address the remaining
issues. If a decision on one point
disposes of an appeal, this court need not decide other issues raised. See Sweet, 113 Wis.2d
at 67, 334 N.W.2d at 562.
By the Court.—Judgments
affirmed.
[1] Four separate lawsuits were brought by the City of Waukesha, Waukesha County, W.T. Corporation and Royal C. Neumann, separately and in concert, seeking to block the issuance of the conditional use permit. These were consolidated for disposition by the trial court. Following the appeal by the Town, all four appeals were again consolidated by order of this court.
[2] Because of the multiplicity of lawsuits in this case, and the fact that the dispositive issue was raised and argued by several other parties as well as the City, the issue of standing for the City is deemed moot. A matter is moot if a determination sought cannot have a practical effect on an existing controversy. Racine v. J-T Enters. of America, 64 Wis.2d 691, 700, 221 N.W.2d 869, 874 (1974). While the Town conceded at oral argument that the issue of standing was “functionally moot,” the Town argued that it should be addressed as a potentially recurring issue. We decline to address the issue of standing on these facts. A reviewing court will generally decline to address moot issues. See State ex rel. Wis. Envtl. Decade v. Joint Comm. for Review of Admin. Rules, 73 Wis.2d 234, 236, 243 N.W.2d 497, 498 (1976).
[3]
The amended portion of Town Code
§ 11.11(i)(14)B. stated:
No Commercial Planned Unit
Development may be authorized except upon the following conditions:
1. The economic practicality of the proposed Planned Unit Development
shall be justified on the basis of purchasing potential, competitive
relationship and demonstrated tenant interest.
2. The proposed Planned Unit Development shall be served by adequate
off-street parking, loading and service facilities.
3. The Planned Unit Development shall not create an adverse effect upon
the general traffic pattern or adjoining property values.
4. Architecture, landscaping, lighting and general site development
shall be compatible with the surrounding neighborhood.
5. The aforementioned requirements shall be certified by the Town as having been fully met.
[4] The City's first complaint requested that the court issue a writ of certiorari “to review the determinations and proceedings of the Town of Waukesha Plan Commission and Town Board.” This was later amended to include a request for a declaratory judgment. The City's claim was followed by actions brought by the other parties to this consolidated appeal. In several of those cases, the issue of the validity of the ordinance was raised. Any reference to the City's argument incorporates by reference the similar claims made by the other parties.
[5]
Prior to the amendment, paragraph (14) read in relevant part as follows:
(14) Residential Planned Unit Developments: In the A-1 Agricultural District and in any Residential District. Due to the increased urbanization and the associated greater demands for open space, it is herein provided that there be flexibility in the regulations governing the development of land. This provision is intended to encourage Planned Unit Development in directions which will recognize both the changes in design and technology in the building industry, and the new demands in the housing market. [Emphasis added.]
[6] The Town's argument is premised on its belief that since the county board approved the amended ordinance, the amended ordinance is valid as applied. That reliance is misplaced.
[7] We note that paragraph (14), “Planned Unit Development,” was the only conditional use which did not specify the zoning districts in which the particular use could be approved. Prior to the amendment, this subparagraph allowed residential PUDs in “the A-1 Agricultural District and in any Residential District.”