COURT OF APPEALS DECISION DATED AND RELEASED SEPTEMBER 19, 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(1), Stats. |
This opinion is subject to
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No. 94-2632
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE OF WISCONSIN
EX REL. PAUL
KELNHOFER,
Petitioner-Appellant,
v.
VILLAGE OF EPHRAIM,
and DIANE KIRKLAND,
Zoning Administrator,
Respondents-Respondents.
APPEAL from an order of
the circuit court for Door County:
DENNIS J. MLEZVIA, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Paul Kelnhofer appeals a trial court order, issued on
certiorari review, that upheld a land use decision by the Village of
Ephraim. The Village denied Kelnhofer a
building permit and land disturbance permit for his hotel building project
after he declined to provide the Village an Environmental Impact Audit (EIA)
for the project, to be conducted by a third party consultant. On appeal, Kelnhofer submits several
arguments: (1) the Village's ordinances
did not authorize it to condition building and land disturbance permits on
EIA's; (2) the character of his project did not warrant an EIA; (3) the
Village's decision constituted a taking of property without due process and
merits a remand for a lawsuit for damages; (4) the Village has no power to
subject his project to ordinances subsequently enacted by the Village and
wetland maps subsequently drawn by the Department of Natural Resources; and (5)
the Village improperly decided to use DNR administrative regulations on DNR
environmental impact statements as a model for Kelnhofer's EIA. We reject these arguments and therefore
affirm the trial court's order.
The Village has enacted
"erosion control" and "wetland" ordinances giving it
considerable power over construction projects.
Section 16.03(1) and (2) of the erosion control ordinance makes the
ordinance applicable to "land disturbing" activities and requires
landowners pursuing building projects to obtain land disturbance permits,
whether they are also seeking regular building permits or conditional use
building permits. In reviewing
applications for land disturbance permits, the Village must consider some kinds
of environmental impacts; specifically, it must examine the impact of a
project's anticipated erosion and drainage on flora, fauna, wildlife, and
water. Ephraim, Wis., Ordinances §§ 16.05(5)(h) and 16.01(2)
(1989). In addition to identifying
specific information that applicants must furnish, the ordinance expressly
authorizes the Village to require applicants to supply "such other
information as may be designated."
Id. § 16.06(3)(d).
In a similar vein, the Village's wetland ordinance requires landowners
pursuing building projects on wetlands to obtain conditional use permits. Id. §§ 17.27(4)(d) and
17.15(1)(b). This ordinance likewise
lists specific data that the applicant must provide and empowers the Village to
seek "other requested information."
Id. § 17.27(4)(c)5.
Last, the Village's conditional use ordinance empowers the Village to
seek "additional information as may be required ... in order to determine
full compliance with the requirements of this chapter." Id. § 17.44(2)(h).
Kelnhofer first argues
that the Village had no power under its ordinances to require EIA's. In cases of certiorari review, trial and
appellate courts have limited powers over municipal land use decisions. We examine such matters only for
jurisdictional excesses by the municipality, or for arbitrary, capricious, and
unreasonable governmental actions. Marris
v. City of Cedarburg, 176 Wis.2d 14, 23-24, 498 N.W.2d 842, 846
(1993). Further, villages have a
measure of freedom in the way they interpret their own ordinances. See State ex rel. Beidler v.
Williams Bay Bd. of Appeals, 167 Wis.2d 308, 311, 481 N.W.2d 669, 671
(Ct. App. 1992). We will uphold their
interpretations if they have a reasonable basis. See id.
Moreover, villages have the implicit powers needed under their
ordinances to carry out their express duties, and particularly those duties
concerning building permits. Cf.
Town of Clearfield v. Cushman, 150 Wis.2d 10, 20-21, 440 N.W.2d
777, 781 (1989). As a general rule,
courts may assume that legislative enactments imposing specific duties on a
governmental entity also convey implied powers of a kind and degree sufficient
for the entity to carry out its express duties. Cf. id.
Here, the Village cited
its erosion control and wetland ordinances as the source of its EIA power. This was a rational interpretation. These ordinances empowered it to require
permit seekers to supply "other requested information" and
"other designated information."
Drafters often use general expressions like "other
information" as a means to grant comprehensive power, by supplying the
grantee flexibility to address a variety of problems and situations. See, e.g., Wilke v. First Fed.
Sav., 108 Wis.2d 650, 654, 323 N.W.2d 179, 181 (Ct. App. 1982). Like the Village, we conclude that such
general language empowered the Village to demand EIA's, should the character of
any project reasonably warrant them; we agree with the Village that it did not
need an express EIA authorization in its ordinances to demand one. The ordinances sought to use regular,
conditional use, and land disturbing permits as means to help control erosion
and safeguard wetlands. Except for the
constraints implicit in the ordinances' focus on erosion control and wetland
preservation, the ordinances nowhere purport to limit the kinds of information
the Village could demand. They left the
Village the freedom to seek any "other information," as long as the
information could rationally help explain the project's effect on erosion
control and wetland preservation. In
sum, we are satisfied that the ordinances granted the Village sufficient power,
express and implied, to require EIA's in appropriate cases.
Kelnhofer next argues
that the character of his project made the Village's EIA demand arbitrary,
capricious, and unreasonable. He states
that his project had good erosion control and was outside the wetlands area, which
he claims exempted it from wetlands controls and related conditional use
permits. Municipalities have broad
powers to protect land use, Cohen v. Dane Cty. Bd. of Adj., 74
Wis.2d 87, 90, 246 N.W.2d 112, 114 (1976), and may limit one parcel for the
general welfare. See Cushman
v. City of Racine, 39 Wis.2d 303, 310-11, 159 N.W.2d 67, 71-72
(1968). Here, the risk the general
welfare faced helped define the scope of the information the Village could
seek; the Village could reasonably call for information proportionate to the
degree of erosion and wetland risks that it perceived the project to pose. Kelnhofer does not dispute his project's
proximity to wetlands. His project's
size and wetlands proximity raised legitimate erosion and wetlands
concerns. At the permit application
stage, the Village need not show the level of such risks with absolute
certainty. Cf. Delta Bio. Res.,
Inc. v. Zoning Appeals Bd., 160 Wis.2d 905, 913, 467 N.W.2d 164, 167-68
(Ct. App. 1991). It may require EIA's
as means to measure existing risk levels, to ascertain a project's fitness for
land disturbance permits, and to determine whether a project has wetland
implications needing conditional use permits.
We see nothing arbitrary in the Village's decision.
Finally, none of
Kelnhofer's remaining claims merit relief.
Inasmuch as the Village could rationally require the EIA, Kelnhofer has
no basis to claim a due process violation.
See, e.g., Laskaris v. City of Wisconsin Dells, 131
Wis.2d 525, 533-34, 389 N.W.2d 67, 71 (Ct. App. 1986). We also see nothing arbitrary, capricious,
or unreasonable in the Village's decision to use DNR administrative regulations
on DNR environmental impact statements as a model for Kelnhofer's EIA. Kelnhofer has not shown that the DNR model
will prove burdensome; the Village's concerns are limited to erosion and
wetlands, and that focus automatically narrows the scope of Kelnhofer's EIA to
the same focused subject matter. Last,
we reject Kelnhofer's request that we remand the matter to the Village with
directions that it consider his application and an EIA in conjunction with the
DNR wetlands maps and Village ordinances in effect when he made his initial
application, without regard to wetlands maps and ordinances created since
then. In certiorari review of land use
decisions, we generally limit our examination to the municipality's past
actions; we ordinarily will not supervise or control hypothetical future issues
and proceedings. Until the Village
first resolves such questions itself, they are not ripe for judicial
review. See Tooley v.
O'Connell, 77 Wis.2d 422, 439, 253 N.W.2d 335, 342 (1977). Kelnhofer must first present such matters to
the Village.
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.