District court errs in requiring city council to address liquor license

by Melanie Thwing

Malin (City Administrator) and the City of Davenport v. Iowa District Court for Scott County
(Iowa Court of Appeals, February 23, 2011)

In July, 2009 Evernew Concept, L.L.C. applied for a Class C beer permit for its store, “Beer Mart,” to allow the sale of beer and wine on a carry-out only basis. The application was approved by the police and fire departments and the City’s building division.  Under section 17.48.020(B)(b)(3) of Davenport’s municipal code a special use permit from the zoning board of adjustment (ZBA) is required for carry-out liquor sales, except for grocery stores, pharmacies, and restaurants.  At a September 2009 ZBA meeting Mazhar stated that the business would be operated along the same lines as its previous owner, which was not a grocery store.  Evernew was granted a one-year special use permit. Later that month the City Administrator Craig Malin sent a letter to Evernew “administratively rejecting” the application.  He stated that a Class C beer permit was, “not allowed in the North Brady URTE corridor…”

Evernew requested that the liquor license application be placed on the next city council agenda, and when this was not granted Evernew filed a petition in district court for a temporary injunction to prevent the city from refusing to submit the application to the city council, and a writ of certiorari declaring as illegal the actions of the city administrator. The City filed a motion to dismiss the petition claiming that Evernew never submitted a valid application to the city council.  An affidavit was filed with the district court by Evernew that stated that its intentions were to have more than fifty percent of profit come from the sale of food and food products.  The district court granted the temporary injunction, finding Evernew likely to succeed on the merits based on its “uncontroverted affidavit [which] provides evidence to the Court that its intention to operate a grocery store on these premises more likely than not qualifies it for a carryout beer and wine permit under Iowa Code §123.129.” After more procedural wrangling, the case ended up before the Iowa Court of Appeals.

The Court of Appeals concluded that under Iowa Code § 123.32(2) and the Davenport City Code it is the city council, and not the city administrator, with the authority to act on liquor licenses.  Given this the district court was correct in sustaining the writ of certiorari that found the city administrator’s actions illegal.  The Court of Appeals concluded, however, that the district court erred in granting the temporary injunction effectively requiring the city council to hear Evernew’s application.  Temporary injunctions are intended to preserve the status quo, and granting the injunction in this case requires the city council to address an application that may or may not have been filed properly.

City not proper party to certiorari action against zoning board of appeals

by Gary Taylor

Acevedo v. The City of Kenosha and the Kenosha City Zoning Board of Appeals
(Wisconsin Court of Appeals, December 22, 2010)

In March 2007, Acevedo began operating a child day care center in the lower unit of a two-family residential dwelling zoned RG-1 General Residential District in the City of Kenosha. The property is owned by Acevedo’s mother; however, neither Acevedo nor her mother reside at the property.   In April 2009, Acevedo sought to obtain a license from the state to operate a second child day care center in the upper unit of the property.  A licensing supervisor from the Wisconsin Department of Children and Families (WDCF), contacted the City of Kenosha Zoning Coordinator, with concerns about licensing another child care center at the same residential property.  This inquiry for the first time alerted the City of Kenosha Department of Neighborhood Services and Inspections that Acevedo was seeking a license from WDCF to operate a child day care center in the upper unit of the property.  The zoning administrator informed Acevedo that the child day care center in the lower unit and the proposed child day care center in the upper unit violated the City of Kenosha zoning ordinance.  After informing Acevedo, the city also notified the property owner (Acevedo’s mother) of the zoning ordinance violation and included a directive to cease and desist all day care activities at the property by May 30, 2009.

In July 2009 Acevedo filed a request for an administrative appeal with the City of Kenosha Zoning Board of Appeals.  The matter came before the Board for an evidentiary hearing on August 13, 2009.  After testimony and evidence was received, the Board affirmed the interpretation of the City’s zoning ordinance by the zoning, and ordered that Acevedo cease and desist all day care operations at the property and remove a ground sign on the property.  On September 23, 2009, Acevedo filed a certiorari action in Kenosha county circuit court which initially named only the City as defendant.  The City moved to dismiss Acevedo’s lawsuit on the basis that the action failed to state a claim for which relief could be granted; specifically, that Acevedo’s claim should have been against the Zoning Board of Appeals, which, the City contended, is a separate body politic.  The City further asserted that the City was not a proper party to the action.  After the City filed its motion to dismiss, Acevedo amended her complaint to add the Board as a defendant.  The circuit court granted the City’s motion to dismiss.  Acevedo appealed the circuit court’s order to the Wisconsin Court of Appeals. 

The issue on appeal was whether the City is the proper party for a writ of certiorari challenging a decision of the Board.  The City contended that Acevedo’s request for a writ of certiorari, which by law is a request to compel action from a public body, cannot in fact compel any action from the City; i.e., that the City has no authority over the actions of the Zoning Board of Appeals.  After reviewing several prior cases raised by Acevedo, and the language of Wis. Stat. §§ 62.23(7)(e)10 and 68.13(1) the Court of Appeals sided with the city.  The language of § 62.23 “clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision.”  Likewise, § 68.13(1) conveys that the decision maker, i.e., the board, is the properly named party on certification, noting “why else would the court be instructed to ‘remand to the decision maker’?”

The Court of Appeals found that its interpretation of these statutes “is in harmony with the rule that the writ of certiorari must go to the board or body whose acts are to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing the board.”

Contempt order contingent on future action was not final, and therefore unappealable

by Melanie Thwing

City of Portage Des Sioux v.  Lambert
(Missouri Court of Appeals, October 26, 2010)

Klaus Lambert and Constance Alt own real property in the City of Portage des Sioux, Missouri. Early in 2004, the city filed a petition for an injunction against them for violations of several ordinances about the safety and sanitation of buildings on their properties. An order was entered on April 27, 2004 that within 60 days of the judgment a red building and a boat be removed from the premises.  The remaining structures on the property also were found to be in such a state of disrepair that they constituted a danger.  The April 27 order included a directive that those buildings be restored, elevated or demolished within 180 days of the judgment.

By October 2006 the Lamberts and Alts had not complied, and on October 19, 2006 a second judgment was entered extending the deadline another 60 days for the red building, and another 180 days for the other buildings.

On August 4, 2009, the city filed a motion for contempt against each defendant. After a hearing, the court entered an order adjudging defendants guilty of contempt of court because of their failure to comply with the April 27, 2004 and October 19, 2006 orders. The court ordered defendants to pay a fine of $100.00 per day “until such time as they have purged themselves of this contempt by demolishing and removing the first building and the remaining buildings on the property.” It further ordered that “to ensure defendants[‘] compliance with the judgment of April 27, 2004, as extended by the order of October 19, 2006, and this judgment/order, if [defendants] fail to demolish and remove the red/rust colored building and remaining buildings on the property by November 30, 2009, the [city] is hereby authorized to demolish and remove the structures.” 

The defendants appealed this August 2009 order; however, the Missouri Court of Appeals determined that the August 2009 order could not be enforced without an additional evidentiary hearing or external proof regarding defendants’ compliance (or noncompliance) with that part of the order requiring them to demolish their buildings by November 30, 2009.  This rendered the enforcement conditional upon the occurrence or nonoccurrence of a future act, the performance of which was outside the record, making the judgment “not final,” and unappealable at the present time.  “Generally, where the enforcement of a judgment is conditional upon the occurrence or nonoccurrence of future acts, the performance or non performance of which is outside the record, the judgment is deemed indefinite and unenforceable.”  The Court of Appeals could not rule on a future act, which may or may not occur. The defendants’ appeal was dismissed.

RLUIPA claim of religious order not ripe for adjudication

by Gary Taylor

Miles Christi Religious Order v. Township of Northville, Michigan
(Federal 6th Circuit Court of Appeals, December 21, 2010)

Plaintiffs owned a house where several of the brothers and fathers of a religious order lived.  They conducted private services and hosted Bible studies.  Several neighbors complained about the number of cars parked on the grass area during these times.  The township wrote a letter asking plaintiffs to provide a description of the activities taking place at the residence and a parking plan.  Plaintiffs did not submit a plan but informed the zoning administrator that they did not have the space to add parking in the back of their property.  As a result, they were told to submit an application requesting a variance to allow parking in the front yard as well as to submit a site plan that would detail the intended expansion of parking spaces.  Plaintiffs failed to submit a site plan, and subsequently were issued a citation for violating the local ordinance that governed site plan review procedures. 

Rather than appeal the citation or apply to the Zoning Board of Adjustment (ZBA) for a variance Plaintiffs filed a claim in federal court challenging the legality of the zoning ordinances as applied to their situation.   Plaintiffs invoked the First and Fourteenth Amendments, the Religious Land Use and Institutionalized Persons Act (RLUIPA) as well as the Michigan State Constitution.  The federal district court held Plaintiffs’ case was not ripe for judicial resolution, in that they had not taken their case to the ZBA, and further that Plaintiffs’ failed to demonstrate that they would suffer irreparable hardship by delaying a federal court decision until they did so.  Plaintiffs appealed the decision to the 6th Circuit. 

To decide whether a dispute is ripe for judicial resolution, the court asks – (1) is the dispute “fit” for a court decision in that it arises in “a concrete factual context” and involves “a dispute that is likely to come to pass” and (2) “what are the risks to the claimant if the federal courts stay their hand?”  In the land-use context, the requirements of a concrete factual context and a dispute that is likely to come to pass “converge in an insistence on ‘finality,’ an insistence that the relevant administrative agency resolve the appropriate application of the zoning ordinance to the property in dispute.”

The religious order conceded that it had not gone to the ZBA to determine whether the ordinances required it to submit a site plan and, if so, which regulations imposed this obligation and why. The religious order also did not deny that the administrative process allows residents to seek a variance. Instead, they argued that the township’s request that they provide a site plan amounted to the kind of final decision necessary to overcome ripeness concerns. The 6th Circuit concluded that this position did not square with the relevant regulations. An administrative appeal to the ZBA would resolve at least three questions about the religious order’s obligations or whether it has any obligations at all, and that an appeal to the ZBA may help Plaintiffs because the ZBA may grant it a variance or provide a different intensive-use determination.

Failure to provide written reasons for rezoning denial within statutory deadline does not invalidate denial

by Melanie Thwing

Johnson v. Cook County
(Minnesota Supreme Court, July 29 2010)

Minnesota Statute § 15.99 subd. 2:

Except as otherwise provided in this section and notwithstanding any other law to the contrary, an agency must approve or deny within 60 days a written request relating to zoning…. Failure of an agency to deny a request within 60 days is approval of the request. If an agency denies the request, it must state in writing the reasons for the denial at the time that it denies the request.

Lance Johnson owns two parcels of land in Cook County, Minnesota. Parcel A is zoned residential and Parcel B is zoned half residential and half commercial. Despite that parcel A is zoned residential, Johnson had a storage shed that was commercially used. On May 15th, 2001 Johnson filed an application to rezone parcel A and half of parcel B to general commercial use.

The county’s planning committee looked at the application during a public meeting in June and recommended to deny the request. In September the Board of Commissioners reviewed the application at a public hearing. After hearing testimony from the public and Johnson the request was denied.  The Board did not state in writing any reasons for the denial.

Then in 2005 Rita’s Grandview Ridge submitted an application to rezone a portion of its property from commercial to residential and for a conditional use permit to build a planned unit development. Both applications were granted. In 2006 Johnson brought a declary judgment action arguing that the commission erroneously denied his application and erroneously approved Rita’s. He also argued the denial constituted a taking of property, all under Minnesota Statute § 15.99, subd. 2.

Summary judgment was granted for the county in district court, stating that the denial was “reasonable.” Later, the Court of Appeals reversed the decision in an unpublished decision, stating that the application was automatically approved under § 15.99 because the county failed to state any written reasons for the denial.

The county then appealed to the Supreme Court, arguing that automatic approval is given only when the application is not acted on within the 60 days. They further argue that the written reasoning is a discretionary function of the statute. Johnson argues that the statute mandates action in writing within 60 days.

In Hans Hagen Homes, Inc v. City of Minnetrista the Supreme Court found that “denial is complete when a city votes to deny the application and adopts a written statement of its reasons for denial, whether or not the city provides notice to the applicant.” Johnson argued that the ruling in Hans Hagen Homes means that denial is not complete until the reasons for denial are provided in writing.

The Court refused to follow Johnson’s reasoning, pointing to a footnote in Hans Hagen Homes that explicitly left the necessity of providing written reasons within 60 days as an open question.  The Court affirmed previous cases that held “a statute may contain a requirement but provide no consequence for noncompliance, in which case we regard the statue as directory, not mandatory.” The Court concluded that the “state in writing the reasons for denial” language in § 15.99 is directory because no consequence for failure to comply is provided in the same sentence (i.e., that the 60-day deadline is in the previous sentence, implying that it only applies to the decision itself). The Supreme Court reversed the decision of the Court of Appeals.

Landowner’s defense in zoning enforcement action barred by issue/claim preclusion

by Gary Taylor

Sharkey v. Dubuque County Zoning Board of Adjustment
(Iowa Court of Appeals, November 24, 2010)

Dennis Sharkey owns two parcels in Dubuque County.  Parcel A is zoned M-1 Industrial and M-2 Heavy Industrial. Parcel B is zoned R-3 Single Family Residential.  The properties, and Mr. Sharkey, have been the subject of numerous disputes since the 1980s.  In 1988 Sharkey entered into a stipulated agreement with the county to resolve a zoning enforcement action.  Under the terms of the agreement Sharkey was “permanently enjoined from conducting or permitting any vehicle salvage operation or storage of any vehicles or junk” on the property.  In 1989 Sharkey was found in contempt of the order.  In 1994 Sharkey was convicted of unlawful storage and disposal of hazardous waste on the property and sentenced to prison.

In March 2007, the Dubuque County zoning administrator sent Sharkey two letters outlining problems with his property. In regard to Parcel A, the letter stated there were semitrailers, scrap metal, wood, appliances, and vehicles being stored outside on the property, in violation of zoning ordinances. In regard to Parcel B, the zoning administrator stated there were boats, junk cars and trucks, scrap metal, tires, and piles of wood being stored outside on the property, in violation of zoning ordinances. The letters also noted no flood plain management permit had been issued for either property.

Sharkey appealed the zoning violations to the Dubuque County Zoning Board of Adjustment, and at a June 5, 2007 hearing the Board determined both properties were being used as illegal junkyards and that the proper flood plain permits had not been obtained.  Sharkey challenged the decision in district court raising several defenses, including that he had a permissible existing nonconforming use and that the definition of “junkyard in the Dubuque County zoning ordinance was impermissibly vague.  The district court found that Sharkey was barred from using these defensed by the legal doctrine of “issue preclusion” – that these issues were decided when Sharkey and the county entered into the 1988 stipulated agreement.  Sharkey appealed to the Court of Appeals.

A party asserting issue preclusion – in this case Dubuque County – must show (1) the issue concluded in the previous action is identical to that in the present action; (2) the issue was raised and litigated in the prior action; (3) the issue was material and relevant to the disposition of the prior action; and (4) the determination of the issue was necessary and essential to the resulting judgment.  The Court of Appeals concluded that issue preclusion did apply.  The issue of whether Sharkey’s property is subject to the Dubuque County Zoning Ordinance, as well as the issue of whether the Flood Plain Management Ordinance applies, was determined in the 1988 action. The district court found the use of the property for auto salvage and the storage of vehicles and junk constituted a public nuisance and was not permitted under the Dubuque County Zoning Ordinance. The court also found Sharkey needed to follow the Dubuque County Flood Plain Management Ordinance.

The Court found that “claim preclusion” applied to Sharkey’s assertion that the term “junkyard” is impermissibly vague.  Claim preclusion involves the following elements: (1) the parties in the two actions were the same; (2) the claim in the second action could have been fully and fairly adjudicated in the prior case; and (3) there was a final judgment on the merits in the prior action.  The Court found that the issue concerning the definition of “junkyard” could have been fully and fairly adjudicated by Sharkey in 1988.

Finding sufficient evidence that Sharkey was impermissibly storing semitrailers, scrap metal, appliances, boats, junk cars and trucks, tires, and piles of wood on property in the M-2 Heavy Industrial District without a special use permit, the Court affirmed the decision of the district court.

City failed to establish injury in Fair Housing Act claim

by Gary Taylor

City of Kansas City v. Yarco Company and Churchill Properties
(Federal 8th Circuit Court of Appeals, November 9, 2010)

Yarco runs an apartment complex in Kansas City. Its lease agreement with its tenants reads, “CURFEW time for everyone under the age of 18 will be 8:30 p.m. nightly.” The city filed a complaint with the Department of Housing and Urban Development (HUD) alleging that the curfew discriminated against “families with children under the age of eighteen,” in violation of the Fair Housing Act (FHA).   Yarco opted for judicial proceedings, and the city sued in state court, alleging violation of the FHA. Yarco removed the case to the District Court for the Western District of Missouri on federal question grounds. Finding that the city could not make a plausible showing of discriminatory intent, the district court granted Yarco’s Motion for Judgment on the Pleadings, and the city appealed to the Federal 8th Circuit Court of Appeals.

On appeal, the 8th Circuit found that the federal courts lacked subject matter jurisdiction to hear the case, because the city could not make the requisite showing of standing.  “The constitutional minimum of standing requires an ‘injury in fact,’ a causal connection between the injury and the conduct complained of.”  The city did not allege injury to itself, but rather that “families with children and children under the age of 18 years of age are aggrieved,” and that the city has a sovereign interest in enforcing the FHA.  The 8th Circuit disagreed, noting that the FHA does not assign claims of aggrieved parties to state and local agencies.  “The city is silent about harm to its particular interests.”  The case was remanded to district court, for further remand to state court.

Board of Adjustment established record sufficient to support denial of conditional use permit

by Gary Taylor

A-Line Iron & Metals, Inc. v. City of Cedar Rapids Zoning Board of Adjustment
(Iowa Court of Appeals, November 10, 2010)

A-Line Iron & Metals, Inc. filed a petition for a conditional use permit with the city of Cedar Rapids, seeking to operate a business to recycle scrap metal and iron (meeting the definition of “salvage yard” under the city’s zoning code).  The location was zoned I-2, “General Industrial Zone.” Salvage yards seeking to locate in I-2 must receive a conditional use permit, and the request must go through the city planning commission for review and recommendation prior to being heard by the zoning board of adjustment (ZBA).
The city’s Community Development department prepared a staff report for the planning commission recommending that the petition could be approved if certain conditions were fulfilled. The report found the requested conditional use was in accord with the future land use designation for the site. The planning commission recommended approval, subject to certain conditions.

Prior to the ZBA hearing, twenty-seven written complaints from nearby property owners were filed with the ZBA.  These written complaints, and the complaints voiced at the hearing, generally revolved around concerns over noise and increased truck traffic.  The attorney for a nearby radio station pointed out that on the future land use map the property was designated “commercial/industrial,” and salvage yards were not permitted in this category.  When asked about this issue at the ZBA hearing the city planner acknowledged the proposed use was not in accord with the future land use map, but expressed the opinion that “when the future land use map was drafted it was an oversight by the technical committee as it should have been shown as general industrial because that’s exactly what the property is for.”

The ZBA denied the conditional use permit.  No written findings of fact were filed by the ZBA; however, extensive minutes were recorded and approved.  In the minutes was a nearly-verbatim comment by the vice chair of the ZBA:

I . . . welcome new employees and new businesses to Cedar Rapids. This is very complicated and a lot of objectors so I went to the book, there is no question that in this district you have the right to apply for a conditional use of a salvage yard . . . . However, I would go to what I would call the three Cs. As I go back into the book here and look at the three Cs it was pointed out that I would just call them consistency, or consistent character, and compatible and as I look at this and as much as I would like to see a new business and new employees, I would say in my opinion we don’t have consistency with the land use. We are out of character for the neighborhood and being out of character it lacks the compatibility that I would like see . . . .  

A-Line filed a petition with the district court.  The district court found the minutes, the transcript of the hearing, and the documents presented at the hearing provided sufficient record to review the ZBA decision.  The district court found the reference to the “three C’s of consistency, character, and compatibility” were clearly a reference to the section of the city’s municipal code that sets forth criteria for approving conditional use permits.  The court determined that the ZBA had considered each of the standards in the code, even though each standard was not specifically discussed.  The court concluded there was substantial evidence in the record to support the ZBA decision.  A-Line appealed the district court decision to the court of appeals.

The court of appeals began by reciting the following principles found in Iowa caselaw regarding the need for ZBAs to develop adequate records of their proceedings:

  • Boards of adjustment shall make written findings of fact on all issues presented in any adjudicatory proceeding.
  • It is sufficient if a board substantially complies with this requirement.
  • There is substantial compliance if the rule has been followed “sufficiently so as to carry out the intent for which it was adopted,” which is “to enable a reviewing court to determine with reasonable certainty the factual basis and legal principles upon which the board acted.”
  • The reviewing court may determine substantial compliance by considering the board’s decision in the context of the meeting where the vote was taken as well as the views expressed by board members during the meeting.

The court of appeals concluded that the ZBA’s findings were sufficiently recorded so as to permit a court to review those findings. The minutes of the meeting and the transcript from the meeting clearly showed the ZBA denied the petition because the intended use of the property was not consistent with the use of nearby property, did not match the character of the neighborhood, and was not compatible with surrounding property. After the city planner advised the ZBA that the conditional use was not consistent with the future land use map, albeit due to an oversight, the vice chair of the ZBA commented that “in my opinion we don’t have consistency with the land use . . . are out of character for the neighborhood, and . . . it lacks compatibility.” The ZBA then proceeded to vote to deny A-Line’s conditional use application.

A-Line asserted the record did not support the denial because it showed that the ZBA addressed only three of the seven standards required for granting a conditional use permit.  The court of appeals pointed out that under the city’s code a conditional use permit can only be granted if all seven of the standards are met, and concluded that the ZBA considered the standards sufficiently to determine that three (those addressing consistency, character, and compatibility) were not met. Thus, addressing the other four standards would be unnecessary.

Finally, A-Line contended that the objectors raised only “generalized, unsubstantiated and speculative concerns that could not rise to the level of substantial evidence.” Noting that expert testimony is generally not required, and a ZBA may rely on anecdotal reports and “commonsense inferences drawn from evidence relating to other issues such as use and enjoyment, crime safety, welfare, and aesthetics to make a judgment,” the court of appeals concluded that substantial evidence existed to support the conclusion that the proposed use would not be consistent with the intent and purpose of the future land use policy plan.

Developer had protected property interest in commercial designation of development plan

by Melanie Thwing

Wedgewood v. Township of Liberty, OH
(Federal 6th Circuit Court of Appeals, June 28, 2010)

In 2003, Wedgewood Limited Partnership entered into agreements to build a Wal-Mart and a gas station in Subarea 3 of the Planned Unit Development (PUD)  of the Wedgewood Commerce Center (WCC) in Liberty Township, OH.  The Trustees had rezoned the land to PUD in 1991, and the WCC Development Plan (WCCDP) was approved in 1992.  Subarea 3 totaled 220, 857 square feet. The WCCDP specified that only areas 3, 8, and 9 (a total of 499,930 square feet) were to be used for commercial development, although Subareas 4, 5, 6 and 10 had obtained permits from 1992 to 2003 to develop approximately 390,611 of commercial space.

In October of 2003, Wedgewood filed an application to amend the WCCDP to increase the land in area 3 to 227,825 square feet for the Wal-Mart project.  The project met significant opposition from the community, and the amendment was denied.  After months of increasing opposition, the Trustees in 2004 issued a set of “Zoning Instructions” meant to clarify the current WCCDP. These Instructions indicated a “floating cap” of 500,000 square feet of commercial zoning covering the entire WCC, unless a “major” modification plan was submitted and approved.  The Trustees issued a public statement indicating that “analysis reveals that the commercial development completed to date, and substantially through the approval process, has consumed most of the square footage imposed by the development plan as an overall cap,” and that “we are instructing our zoning department to refrain from issuing any zoning certificates for additional commercial development” unless the proposal goes through the major modification process.

Later that year, Wedgewood again applied for a zoning certificate, but this time to build a smaller 220.597 square foot structure that would fit entirely within Subarea 3. It was not submitted as a major modification plan, and the Commission for Zoning cited this as the reason for denial. Wedgewood countered, filing a claim with the district court for the Southern District of Ohio under 42 U.S.C. § 1983. They argued that the Township’s adoption of the new Zoning Instructions violated Wedgewood’s procedural due process rights, and that the Zoning Instructions were void for vagueness. Summary judgment was granted in favor of Wedgewood, creating a permanent injunction preventing the Township from enforcing the new Zoning Instructions.  The Township immediately appealed to the Court of Appeals for the 6th Circuit.

§519.12 of the Revised Code of Ohio requires notice and a hearing before a zoning ordinance can be adopted or amended.  The Township argues this occurred in 1991 with the adoption of the PUD and the WCCDP, and that the document specifies a 500,000 square foot floating cap. Wedgewood counters that a floating cap had never entered discussion, and is not set forth anywhere in the WCCDP. The Court points out that if a floating cap was meant to exist, then it would be arbitrary to assign subareas 3,8, and 9 as commercial, and that it would ignore the strong correlation between the 500,000 square foot floating cap, and the 499,930 square foot total area for subareas 3, 8, and 9. The Court concludes that the Instructions, for these reasons, changed the WCCDP, which requires a hearing.

The Township then argues that Wedgewood had no protected property interest in the previous amendment procedures, while Wedgewood maintains it did. In Ohio a vested interest in property is given when an application for a building or zoning certificate is filed. Although Wedgewood did this, the Township counters that it was after the Instructions, meaning there was no interest prior. In Stile v. Copley Twp., the district court held a “protectable interest can arise under Ohio law when a government entity restricts a landowner’s ability to use his property.” Using this as a standard, the Court states that Wedgewood justifiably expected to use its land commercially up to 220,857 square feet, unless a proper amendment was passed.

The last issue is whether enacting the instruction without a hearing or providing prior notice to Wedgewood violated Wedgewood’s due process property interest. In Nasierowski Bros. Inv. Co. v. City of Sterling Heights the Court found that not providing notice has a severe and detrimental impact on how the owner can expect to use the land. This standard leads the Court to conclude that Wedgewood was singled out, that prior notice was mandatory, and that Wedgewood had the right to voice concerns.  The summary judgment for a permanent injunction was upheld.

Wisconsin Town’s denial of rezoning request did not meet standard required by statute

by Allison Arends

Keith Johnson v. Washburn County and Town of Spooner
(Wisconsin Court of Appeals, February 17, 2010)

In Wisconsin, state law provides towns (townships) with a role in the county zoning process.  Under WIS. STAT. § 59.69(5)(e)3.  if a town affected by a proposed rezoning disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the [county zoning] agency before, at or within 10 days after the public hearing.

The Johnsons owned property in the Town of Spooner in Washburn County. In an attempt to rezone their property from forestry classification to planned unit development, the Johnsons filed a rezoning petition with Washburn County. The County zoning administrator sent a formal two page document to the town board requesting the town’s recommendation whether to approve or deny the petition (as required by Wisconsin law).  If the recommendation was to deny the petition, such denial must be made via a “certified copy of a resolution adopted by the town board” as required by WIS. STAT. 59.69(5)(e)6. The document provided spaces for the board to submit (1) their decision to recommend approval or denial of the petition (2) an explanation of that decision and (3) the signatures of the town chairman, supervisors, and clerk. The completed document was returned with only the word “denial” in the space for the recommendation and the signatures of the town chairman and two town supervisors, and countersigned by the town clerk. Although there was no indication of when or where the hearing was held, the town clerk dated the document July 10, 2007.

On September 18, 2007 the County approved the Johnson’s petition by adopting an amendatory ordinance over the Town’s denial. The Town responded by passing a formal resolution vetoing the County’s amended ordinance. As a result the zoning administrator notified the Johnson’s that their property would remain zoned forestry because the Town’s action, “effectively invalidated the ordinance amendment.”

The district court found,” the written submission to the zoning committee proper documentation of a town resolution disapproving the requested zoning change…” The Johnson’s appealed arguing that the July 10th denial did not constitute a certified copy of a resolution adopted by the town board, and that the vetoing of the County’s amendatory ordinance was irrelevant under WIS STAT 50.69(5)(e)6.

The question presented to the Court of Appeals was whether the form upon which the Town submitted its July 10 recommendation to the County constituted a certified copy of a resolution adopted by the town board under WIS. STAT. § 59.69(5)(e)3.  The Court of Appeals concluded that it did not.  “If the Town wished to object to the Johnsons’ petition, it was required to do so by passing a formal resolution, as it later did when disapproving the County’s amendatory ordinance.”  Although the legislature intended the town board “to serve as a political check on the otherwise unfettered discretion of the county board in wielding its legislative zoning power,” the town board performs its function as a political check only by certifying to the county that its denial was considered at a properly-noticed public meeting at which a resolution was introduced and carried.  Nothing in the record assures this occurred.

The court went on to note, “An amendatory ordinance is effective on passage if it makes only the change sought in the petition and if the petition was not approved by the town board pursuant to WIS STAT 59.69.” Therefore because the court found the town’s denial to be an improper resolution, the court decided that on remand, the circuit court would have to determine whether the amendatory ordinance complied with the requirements pursuant to WIS. STAT.59.69(5)(e)6.





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