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COURT OF APPEALS DECISION DATED AND RELEASED September 26, 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. 96-0149
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT IV
JAMES HANLON,
Plaintiff-Respondent,
v.
TOWN BOARD OF MILTON,
TOWN OF MILTON
PLANNING & ZONING,
TOWN OF MILTON BOARD OF
ADJUSTMENT, and TOWN
OF MILTON,
Defendants-Appellants.
APPEAL from a judgment
of the circuit court for Rock County:
PATRICK J. RUDE, Judge. Reversed.
Before Eich, C.J.,
Dykman, P.J., and Paul C. Gartzke, Reserve Judge.
PER CURIAM.[1] The
Town of Milton and its town board, board of adjustment, and planning and zoning
committee appeal from a judgment reversing the Town's decision to deny James
Hanlon a conditional use permit. On
certiorari review of a town zoning decision, review is limited to whether the
Town kept within its jurisdiction; whether it acted accordingly to law; whether
its action was arbitrary, oppressive or unreasonable and represented its will
and not its judgment; and whether the evidence was such that it might
reasonably make the order or determination in question. 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). We apply those
standards de novo and without deference to the trial court's
decision. See Steenberg v. Town
of Oakfield, 167 Wis.2d 566, 571, 482 N.W.2d 326, 327 (1992). Applying the standards to this case, we conclude
that the independent decisionmaker acted properly. We therefore reverse the trial court's judgment.
Hanlon applied to the
Town for a conditional use permit to open and operate a gravel pit. The Town denied his request and, after
proceedings in the trial court, the matter was remanded for an administrative
appeal before an impartial decisionmaker, pursuant to § 68.11, Stats.
After an evidentiary hearing, the hearing examiner issued extensive
findings of fact and conclusions of law upholding the Town's decision to deny
Hanlon a permit. On review of that
decision, the trial court reversed and entered judgment ordering the Town to
issue a permit.
The trial court reversed
because it concluded that the hearing examiner failed to follow the criteria
set forth in § 5.3 of the Town's ordinances. When reviewing conditional use applications, § 5.3 requires the
board to consider: (1) the
location, nature and size of the proposed use; (2) the size of the site in
relation to the use; (3) the location of the site with respect to existing
or future roads giving access to it; (4) the compatibility of the use with
existing uses on adjacent land; (5) harmony of the use with future
development in the area; (6) existing topography, drainage, soil type and
vegetative cover; and (7) the relationship of the use to the public
interest, the purpose and intent of this ordinance and substantial justice to
all.
The hearing examiner
made no express reference to § 5.3 in his decision. He did, however, rely on a different portion
of the Town's ordinances, entitled "Standards for Evaluating Conditional
Uses, Changing Zoning Districts and Granting Variances." That section requires examination of
(1) site design and physical characteristics; (2) site location
relative to the public road network; (3) land use, including compatibility
with existing or proposed uses in the area, relation to an existing land use
plan, and relation to nearby existing or proposed development; (4) traffic
concerns; (5) community effect, including "relation to the public
interest, the purpose and intent of this ordinance, and substantial justice to
all"; and (6) other relevant factors.
By any reasonable view, the
hearing examiner used a set of standards virtually identical to the standards
set forth in § 5.3 in deciding this case.
His findings of fact based on those standards included:
(1) that dust from the mine would negatively affect nearby commercial apple
orchards; (2) that within one mile of the mine, there were twenty-one
households in which a family member had a respiratory condition; (3) that
noise levels from the mine would exceed the Town's standards; (4) that
water from the mine may run off into a wildlife area and that the mine owner
had not sought permits necessary to reroute surface waters; (4) that there
was no plan for disposing of waste water or evidence of the effect on the water
table of extensive water use; (6) that traffic from the mine would
conflict with and pose a danger to families living nearby; (7) that the
area of the mine was primarily residential, with further residential
development planned; (8) that the DNR considered the mine a threat to its
nearby wildlife area; and (9) that nearby residents oppose the mine
because of concern with traffic, noise, dust and lowered property values.
Based on these findings,
the hearing examiner concluded that the proposed use of the property was
incompatible with existing and proposed uses in the area and with the existing
land-use plan and that it would have a substantial detrimental impact on the
tax base. He also concluded that the
operation was incompatible with surrounding scenic and recreational values,
that the proposed mine would create a substantial injustice to a large majority
of the residential property owners in the immediate area, and that the proposal
was therefore contrary to the public interest.
The evidence in the
record was such that the hearing examiner could reasonably make the findings
and conclusions in question. He kept
within his jurisdiction, acted accordingly to law, and the evidence in support
of the decision demonstrates that it was not arbitrary, oppressive or
unreasonable. The hearing examiner's
only omission, insofar as § 5.3 is concerned, was his failure to note the
size of the proposed use and the size of the site in relation to the use. Those were questions that had little bearing
on the dispute. We must therefore
reverse the trial court, reinstating the decision to deny a permit.
By the Court.—Judgment
reversed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.