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COURT OF APPEALS DECISION DATED AND RELEASED April 3, 1996 |
NOTICE |
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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. 95-1031
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT II
MARIO DELUCA,
Plaintiff-Appellant,
v.
TOWN OF VERNON, and
TOWN OF VERNON
PLANNING COMMISSION,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Waukesha County:
PATRICK L. SNYDER, Judge. Affirmed.
Before Anderson, P.J.,
Brown and Snyder, JJ.
PER
CURIAM. Mario DeLuca appeals from a circuit court order
affirming on certiorari review a decision of the Town of Vernon Planning
Commission (the Commission) to deny him a conditional use permit to construct a
salt storage facility on his National Avenue property. We affirm.
DeLuca operates a
landscaping business in the Town of Vernon on properties located on Big Bend
Drive and National Avenue. DeLuca
submitted two site plans to the Commission seeking authority to build a salt
storage building on the properties.
After a public hearing, the Commission rejected DeLuca's applications
for conditional use permits for both sites.
On certiorari review, the circuit court affirmed the Commission. DeLuca appeals.[1]
We review the record
before the Commission, see State ex rel. Hemker v. Huggett,
114 Wis.2d 320, 323, 338 N.W.2d 335, 336 (Ct. App. 1983), to determine
whether: (1) the Commission 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 determination in
question. See State ex
rel. Brookside Poultry Farms, Inc. v. Jefferson County Bd. of Adjustment,
131 Wis.2d 101, 119-20, 388 N.W.2d 593, 600 (1986).
The National Avenue
property is located within the B-3 general business district of the Town of
Vernon. Section 15.01 of the Waukesha
County zoning code which applies to the Town of Vernon sets forth permitted
uses within the B-3 district. Section
15.01(1)(B)5 permits "[a]utomobile sales rooms, repair shops and storage
yards, and garages for equipment, supplies or vehicles, but not including the
storage of junked or wrecked automobile parts, or solid waste disposal
sites." DeLuca contends that he
does not need a conditional use permit to construct a salt storage building
because the proposed use of the National Avenue site falls within the permitted
uses of "storage yard" or "garage for supplies." After a public hearing, the Commission
denied DeLuca's request to build a salt storage facility at the National Avenue
location on the following grounds:
(1) County
mandates that a B-3 zoning is not a permitted use for salt storage shed without
a public hearing.
(2) Based
on the Public Hearing opposition, the signatures on the petitions that were
submitted in opposition is a great indicator that the public is opposed for
whatever reason to the salt storage shed even in a B‑3 zoning.
(3) The
increase of noise and traffic across from Guthrie School with 3- to 5-year-old
children would be detrimental to those children.
(4) There
already are problems with erosion and drainage with the adjacent parcels.
(5) A
liability to the Town of Vernon.
(6) Endangerment to public health, safety and
welfare.
DeLuca makes two
arguments on appeal. First, he argues
that the Commission's decision must be set aside because it did not have
jurisdiction to act on a conditional use permit which was not required in the
first instance. Second, DeLuca claims
that the Commission's decision was arbitrary, capricious and unreasonable.
A determination as to
whether a salt storage building falls within the permitted uses under § 15.01(1)(B)5
requires construction of the ordinance.
The rules governing the interpretation of ordinances and statutes are
the same. State v. Ozaukee County
Bd. of Adjustment, 152 Wis.2d 552, 559, 449 N.W.2d 47, 50 (Ct. App.
1989). The meaning of an ordinance is a
question of law which we review de novo.
Id.
The disputed section of
the B-3 general business district zoning classification consists of a series of
terms. DeLuca argues that terms
appearing within the middle of the series permit the use of his National Avenue
property for a salt storage shed. We
disagree. Application of the rule of ejusdem
generis indicates that salt storage sheds are not a permitted use under the
ordinance.
Under the rule of ejusdem
generis, where a general term such as storage yard, garage or supplies
"is preceded or followed by a series of specific terms, the general term
is viewed as being limited to items of the same type or nature as those
specifically enumerated." State
v. Campbell, 102 Wis.2d 243, 246, 306 N.W.2d 272, 273 (Ct. App.
1981). The rule requires that the
specific terms "have a ‘common element' defining the class to which the
general term is to be restricted ...."
Id. at 247, 306 N.W.2d at 274.
Here, the terms storage
yards, garage and supplies are preceded by the term automobile and are followed
by reference to "storage of junked or wrecked automobile parts
...." The rule of ejusdem
generis requires interpreting the more general terms of storage yards,
garages and supplies as limited to matters involving automobiles. A salt storage facility does not involve
automobiles in the manner contemplated by § 15.01(1)(B)5. Because the ordinance precludes salt storage
facilities in B-3 zoning areas, the Commission was within its jurisdiction in
requiring a conditional use permit.
Citing State ex
rel. Skelly Oil Co. v. Common Council, 58 Wis.2d 695, 207 N.W.2d 585
(1973), DeLuca argues that because a conditional use allows a property owner to
put property to a use which the zoning ordinance expressly permits, see id.
at 701, 207 N.W.2d at 587, the Commission was bound to consider whether
DeLuca's proposed salt storage facility was similar to other uses in the B-3
district. DeLuca argues that the record
is devoid of any discussion by the Commission on this question. From this, DeLuca reasons that the
Commission mistakenly believed that it could arbitrarily deny him a conditional
use permit.
Skelly does
not stand for the proposition offered by DeLuca. In Skelly, the property owner sought a conditional
use permit to erect a service station on property which was zoned for specified
commercial uses which did not include service stations. Id. at 697, 207 N.W.2d at
585. The permit was denied by the plan
commission. The city common council
affirmed the denial. Id.
at 698, 207 N.W.2d at 585‑86. The
property owner argued on certiorari review that the Board of Zoning Appeals,
not the common council, should have reviewed the plan commission's refusal to
issue a conditional use permit. Id.
at 700, 207 N.W.2d at 586-87.
Our supreme court held
that the Board of Zoning Appeals had exclusive authority to address conditional
uses and that it was error for the common council to do so. Id. at 703, 207 N.W.2d at
588. Skelly does not
stand for anything other than the procedure whereby review of a denial of a
conditional use permit may be had under the then-applicable statutes. Skelly does not stand for the
proposition that in evaluating a conditional use permit application, a planning
commission must consider whether the proposed use is similar to other uses in
the district.
DeLuca next argues that
his conditional use permit application was accompanied by a specific site plan
and other information requested by Town officials but that the Commission's
reasons for denying the application did not reveal considerations of these
materials and focused solely upon objections presented at the public
hearing. This claim is contrary to the
record. The minutes of the Commission
hearing held on June 24, 1993, on DeLuca's request for a conditional use permit
for the National Avenue property indicates that the Commission considered the
following factors in making its determination:
(1) physical inspection before construction; (2) landscaping; (3)
erosion control plans; (4) storm water retention—south of parcel; (5) will it
be transferable; (6) size and location of building; (7) other uses;
(8) construction per town engineer; and (9) hydrogeologic report and
monitoring wells. A number of these
considerations were raised in the materials DeLuca submitted to the Commission.
DeLuca contends that the
reasons given by the Commission for rejecting his National Avenue conditional
use permit application are not supported in the record. While a conditional use is not inconsistent
with other uses within a specific zoning area, "it may present special
problems if allowed to develop as a matter of right. A conditional use is merely a device to permit a degree of
flexibility in controlling permitted development within a zone." Wisconsin Dep't of Transp. v. Office
of Comm'r of Transp., 135 Wis.2d 195, 200, 400 N.W.2d 15, 17 (Ct. App.
1986) (citation omitted). Here, the
Commission's reasons for denying a permit are indicative of its desire to
control development within the B-3 zone.
The Commission's refusal
to issue a conditional use permit due to the proximity of a school, erosion and
drainage problems, and danger to public health, safety and welfare are
supported in the record or by inferences which may be drawn therefrom. The proximity of a school to the National
Avenue site which would operate seven days a week and during such hours
"as weather requires" necessarily raises concerns regarding public
health and safety. Additionally, public
opposition to the permit at proceedings held in June 1992 on DeLuca's earlier
application was partially based on these concerns. Erosion, drainage and groundwater contamination problems were
recognized and commented upon by engineers who reviewed the site plan and by
citizens at a public hearing. The
record supports the Commission's reliance upon these factors in denying
DeLuca's conditional use permit application.
Finally, DeLuca argues
that it was incumbent upon the Commission to fashion remedies or conditions
which might address the concerns which caused it to deny DeLuca a conditional
use permit. DeLuca cites no authority
for this proposition. Therefore, we do
not address it further. Post v.
Schwall, 157 Wis.2d 652, 657, 460 N.W.2d 794, 796 (Ct. App. 1990).
By the Court.—Order
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.