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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 10, 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. 96-1458-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
JEAN LOGSDON,
Petitioner-Respondent,
v.
SAWYER COUNTY ZONING
COMMITTEE,
Respondent-Appellant.
APPEAL from an order of
the circuit court for Sawyer County:
ROBERT E. EATON, Judge. Reversed
and cause remanded with directions.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER
CURIAM. The Sawyer County Zoning Committee appeals a trial
court order that overturned its decision to grant Vaughn Skille a conditional
use permit to operate a gravel pit.[1] The committee issued the permit at a second
hearing, after one committee member had missed the first hearing. The committee also asked Skille some
questions at the second hearing after stating at the first hearing that it
would take no further evidence. On
certiorari review, the trial court agreed with area resident Jean Logsdon that
the committee member who missed the first hearing improperly cast a vote on the
conditional use permit and that the committee improperly took additional
evidence at the second hearing without giving interested citizens proper
notice.
The trial court properly
reversed the committee if (1) the committee acted outside its jurisdiction, (2)
violated the law, (3) issued an arbitrary, oppressive, or unreasonable
decision, or (4) disregarded the evidence.
Metro Holding v. Milwaukee Review Bd., 173 Wis.2d 626,
630, 495 N.W.2d 314, 316 (1993). On
appeal, the committee argues that it properly took additional public commentary
at the second hearing and that a member who missed the first hearing could
lawfully cast a vote on the conditional use permit. In response, Logsdon argues that the trial court properly
invalidated the conditional use permit.
We agree with the committee. We
therefore reverse the trial court order and remand the matter for the trial
court to issue an order upholding the conditional use permit.
We reject Logsdon's
arguments. First, committee members who
miss hearings may make decisions as long as they have considered the
information taken at the missed hearing through a transcript or other adequate
means. See State ex rel.
Cities S. O. Co. v. Bd. of Appeals, 21 Wis.2d 516, 540-42, 124 N.W.
809, 821-22 (1963). Here, the absent
committee member reviewed the hearing's audio tape and the documentary
information presented at that hearing.
This was sufficient under the Cities S. O. decision. Second, although Logsdon claims that the
committee provided faulty advance notice of the second hearing, Logsdon has not
shown that the committee learned anything at the second hearing that was both
material to its decision and refutable by Logsdon with proper notice. Zoning opponents who claim faulty notice
must show that such faulty notice was prejudicial, see id.
at 533-35, 124 N.W.2d at 818-19, and Logsdon has not shown such prejudice. In sum, the defects Logsdon alleges did not
invalidate the conditional use permit, and the trial court improperly
overturned the committee's decision.
By the Court.—Order
reversed and cause remanded for the trial court to issue an order affirming the
committee's decision.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.