|
COURT OF APPEALS DECISION DATED AND RELEASED AUGUST 13, 1996 |
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. |
No. 96-0635-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
STATE EX REL.
RONALD H. KRIENKE and
KAREN L. KRIENKE,
Petitioners-Appellants,
v.
TOWN BOARD,
TOWN OF ROUND LAKE,
Respondent-Respondent.
APPEAL from a judgment
of the circuit court for Sawyer County:
NORMAN L. YACKEL, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. Ronald and Karen Krienke appeal a judgment affirming a
decision of the Administrative Appeal Board for the Town of Round Lake that
denied the Krienkes' application for a driveway permit.[1] They argue that the board's decision was
arbitrary, oppressive and unreasonable and that its findings are not supported
by the evidence. We reject these
arguments and affirm the judgment.
The Krienkes sought
driveway access to Tiger Cat Road. The
board denied the permit, citing safety concerns including the number of exits
created on the road, sight stopping distance, existing speed limits, stopping
distance and hazards created by topography and geology.
The scope of the court's
review is limited to whether the board kept within its jurisdiction; whether it
proceeded on a correct theory of law; whether its action was arbitrary,
oppressive or unreasonable and represents its will and not its judgment; and
whether the evidence was such that the board might reasonably make the
determination in question. See Klinger
v. Oneida County, 149 Wis.2d 838, 843, 440 N.W.2d 348, 350 (1988). The court must view the board's
determination with a presumption of correctness and validity. See Town of Hudson v. Board of
Adjustment, 158 Wis.2d 263, 277, 461 N.W.2d 827, 832 (Ct. App.
1990). It is not the function of the
court to substitute their judgment for the board's. See § 277.57(8), Stats.
The board's decision is
supported by adequate evidence and was not arbitrary, oppressive or
unreasonable. Board members personally
inspected the area and assessed the danger created by adding access points to a
road with a fifty-five mile-per-hour speed limit, cars pulling boat trailers
and numerous non-vehicular uses. The
board noted that the road has narrow shoulders and is adjacent to a swamp. In winter months, heavy morning traffic and
shading from the sun causes the road to become slippery. These findings are adequately supported by
the record and constitute a reasonable basis for the board's decisions.
The Krienkes focus
solely on the sight stopping distance.
Their expert witness visited the site only once in August and measured
the sight stopping distance from the crest of the hill to the Krienkes'
proposed driveway. This testimony,
without considering factors like icing and road use, does not present
compelling evidence that the proposed driveway would be safe. Another Krienke witness suggested reducing
the speed limit in the area to thirty-five miles per hour, implicitly conceding
the board's safety concerns.
The board's approval of
previous driveway permits to other individuals does not establish that its
decision was based on a double standard.
As the trial court noted, each case must be decided on its own
merits. The Krienkes established that
the sight stopping distance to its proposed driveway was greater than the
distance for other driveways that had been approved over the years. They presented no evidence regarding traffic
volume, speed, seasonal uses or special hazards. Even if the circumstances were nearly identical, the board could
reasonably determine that it should limit the number and spacing of potential
hazards.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.