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COURT OF APPEALS DECISION DATED AND FILED June 1, 2005 Cornelia G. Clark Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
Cir. Ct. No.
2003CV1628 |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT II |
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Rainbow Springs Golf Company,
Inc., Plaintiff-Appellant, v. Waukesha County, Defendant-Respondent. |
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APPEAL from an order of the circuit court for Waukesha County: mark S. gempeler, Judge. Affirmed.
Before Anderson, P.J., Brown and Nettesheim, JJ.
¶1 PER CURIAM. Rainbow Springs Golf Company, Inc. appeals from an order of the circuit
court affirming on certiorari review the Waukesha County Park and Planning
Commission’s (planning commission) decision to terminate a conditional use
permit and three addenda thereto (CUP) for Rainbow Springs’ property.[1] We affirm.
¶2 The
CUP, issued in 1981, permitted Rainbow Springs to operate a recreational
resort, including accommodations, food service and meeting facilities. However, Rainbow Springs never opened and
operated such a facility. The first and
second addenda, issued in 1992 and 1993, permitted Rainbow Springs to operate a
haunted house on the premises and serve beer.
The haunted house operated until 2001.
The third addendum, issued in 1998, authorized Rainbow Springs to
operate a full-service restaurant in the building which had been a
clubhouse. The CUP and addenda
contained conditions which had to be fulfilled. In April 2002, the hotel/conference center was badly damaged by a
fire which precluded further operation of the haunted house. At the time of the fire, the clubhouse
offered a snack bar, but not a full-service restaurant.
¶3 After
determining that Rainbow Springs’ use of the property did not conform to
conditions of the CUP and that certain uses under the permit were discontinued
for a period of twelve consecutive months, the Waukesha County planning
commission terminated the CUP in June 2003.[2] On statutory certiorari review, the circuit
court concluded that the County planning commission had authority to revoke the
CUP, followed the correct procedure in doing so and made the necessary findings
to reach a determination which was neither arbitrary nor capricious. Rainbow Springs appeals.
¶4 Many
of Rainbow Springs’ appellate issues have already been addressed in our
decision of even date in Rainbow Springs Golf Company, Inc. v. Town of
Mukwonago, No. 2004AP1769, unpublished slip op. (WI App June 1, 2005). We incorporate that opinion herein by
reference.
¶5 We
are left in this appeal with two issues to address: (1) Waukesha County, WI
Shoreland Floodland Protection Ordinance § 3.07(6) (2003) which
governs expiration or modification of conditional use status; and (2) the
sufficiency of the evidence before the County planning commission.
¶6 Section
3.07(6) provides:
Conditional use status will terminate when, after public hearing, and a class 2 notice is published and notice provided the town and the owner of the subject property, the plan commission and county zoning agency determine any of the following
(A) The conditional use has not continued in conformity with the conditions of the permit.
(B) A change in the character of the surrounding area or if the conditional use itself causes it to be no longer compatible with surrounding uses.
(C) The conditional use has been discontinued for a period of twelve (12) consecutive or eighteen (18) cumulative months during a three-year period. A business of a seasonal nature shall not be deemed discontinued during periods in which it is normally inactive (i.e., summer camps, ski hills, quarries, marinas, etc.)
Waukesha County, WI Ordinance § 3.07(6).
¶7 Rainbow
Springs argues that the definition section of the ordinance, § 2.01,
defines “plan commission” as the “local Town Plan Commission” and does not
refer to a town board. Waukesha County, WI Ordinance
§ 2.01. Relying upon the definition
of “plan commission” and the provisions of § 3.07(6), Rainbow Springs
argues that the absence of any mention of a town board in the County’s CUP
termination process means that the decisions of the Town and County planning
commissions control. In this case, the
County planning commission and the Mukwonago town board revoked the CUP; the
Town planning commission did not recommend termination of the CUP. Because the action of the Town board is not
recognized by the County ordinance, the County planning commission’s decision
to revoke the CUP was fatally flawed, in Rainbow Springs’ view. The circuit court rejected this argument on
certiorari review, and so do we.
¶8 Rainbow
Springs’ interpretation of Waukesha
County, WI Ordinance § 3.07(6) erroneously elevates the Town of
Mukwonago planning commission over the Town board. This is a particularly odd result given that the Town of
Mukwonago’s own ordinances recognize that the Town board is the senior
decision-making body in the municipality.
¶9 The
Town of Mukwonago’s ordinance states in pertinent part:
If the [conditional] use does not continue in conformity with the conditions of the original approval, or for similar cause based upon consideration for the public welfare, such conditional use status may be terminated by action of the Town Board following referral to the Plan Commission and a public hearing per Section 23.00, in which case such use shall thereafter be terminated unless permitted as a pre-existing legal conforming use.
Town of Mukwonago, WI Ordinance § 3.08(3).
¶10 As we
held in Rainbow Springs Golf Company, Inc. v. Town of Mukwonago,
No. 2004AP1769, unpublished slip op. ¶7 (WI App June 1, 2005), the ordinance
does not limit the Town board’s authority to rubber-stamping the Town planning
commission’s determination regarding a CUP or require the planning commission
to first approve terminating a CUP. The
Town board is the entity with ultimate authority to plan land use, and it is
the Town board’s decision that is relevant under the County ordinance when it
comes to deciding whether to terminate a CUP.
¶11 In an
appeal from a circuit court decision on certiorari, we review the record of the
planning commission to which certiorari is directed, not the judgment or
findings of the circuit court. Klinger
v. Oneida County, 149 Wis. 2d 838, 845 n.6, 440 N.W.2d 348 (1989).
When no additional evidence is taken, statutory certiorari review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the board might reasonably make the order or determination in question based on the evidence.
State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d
549, 676 N.W.2d 401.
¶12 For
the reasons set forth in Rainbow Springs Golf Company, Inc. v. Town of
Mukwonago, No. 2004AP1769, unpublished slip op. (WI App June 1, 2005),
we conclude that the County planning commission kept within its jurisdiction,
need not have resorted to alternatives to termination of the CUP, and did not
act arbitrarily or capriciously.
¶13 We
turn to whether the County planning commission reasonably decided to revoke the
CUP based on the evidence. We will not
disturb the planning commission’s decision if any reasonable view of the
evidence sustains the decision. Snyder
v. Waukesha County Zoning Bd. of Adjustment, 74 Wis. 2d
468, 476, 247 N.W.2d 98 (1976). Because
there was evidence from which a reasonable decision could be made that Rainbow
Springs violated the CUP, the planning commission did not act arbitrarily in
terminating the CUP.
¶14 As the
minutes of the June 2003 meeting on Rainbow Springs’ CUP reveal, the County
planning commission discussed the Waukesha County Department of Parks and Land
Use staff report and recommendation relating to Rainbow Springs’ CUP. The minutes of the meeting reflect that the
commission approved the staff report, which provided the commission with
detailed information about the history of the site and its current problems. The commission considered the specific
termination requirements under the shoreland zoning ordinance and the staff
report.
¶15 The
staff report indicates that even before the April 2002 fire, sections of the
property were not being used as required by the CUP. The staff report cited the efforts of the Town of Mukwonago to
have the property cleaned up. The staff
report recommended terminating the addenda relating to the haunted house
because the house had not operated for more than twelve consecutive months due
to the fire. The report also noted
building and fire code violations at the site and the presence of hazardous
debris as documented by the Town of Mukwonago building inspector, all in
violation of the 1981 CUP. The report
further noted that the warming shack did not have a sanitary permit, and the
property owner did not advise when the conditions of the CUP would be met.
¶16 There
is substantial evidence—“evidence of such convincing power that reasonable
persons could reach the same decision as the board”—to support the County
planning commission’s decision to terminate the CUP. See Clark v. Waupaca County Bd. of Adjustment,
186 Wis. 2d 300, 304, 519 N.W.2d 782 (Ct. App. 1994). The planning commission’s decision was not
arbitrary or capricious because it had a reasonable and rational basis. See Snyder, 74 Wis. 2d at 476.
By the Court.—Order affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5. (2003-04).