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Court
Of Appeals Case Is
Reminder To Be Careful With Statements Concerning Pending Land Use
Proposals
Atty Mark Hazelbaker
The
Wisconsin Court of Appeals recently reversed a conditional use
permit granted by the County Zoning and Natural Resources Committee
because one of the ZNR members had made a statement before the
hearing and in a local newspaper favoring the proposal. The
Court's ruling, which remanded the matter to the ZNR for another
decision, serves as a reminder that town officials and others need
to be careful making statements about pending zoning matters.
The case involved a quarry proposed by Payne & Dolan in the Town of
Verona. One of the County Board members on the ZNR publicly
stated that he supported the proposal prior to the hearing on the
permit application. The permit was ultimately granted, and
opponents of the proposal sued. On review, the Court of
Appeals held that the County Board member involved had become an
advocate for the applicant by making public statements in support of
the applicant prior to the hearing.
However, the Court refused to find that there was a violation of the
law because one of the other ZNR committee members had leased part
of his farm property to Payne & Dolan for operation of another
quarry. The Court of Appeals held that merely because Board
members have prior business dealings with the applicant which are
unrelated to the property at issue, there is no bias.
Finally, the Court held that when approving
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conditional use permits for mineral extractions, the reviewing
agency needs to make findings as to whether or not the rezoning
should occur under the ten criteria that apply under the exclusive
ag zoning ordinance. Those criteria are found in sec.
10.123(3)(a)(1) a.-j. Henceforth, the staff for the ZNR will
doubtlessly assure that findings are prepared and adopted on these
10 criteria.
For Town Board members and Town Plan Commission members, the case
stands as a reminder that local officials should avoid taking public
positions on pending land use decisions. It is important that
the applicants be given a fair hearing, and that opponents know that
they have the opportunity to be heard in opposition as well.
The case is Keen vs. Dane
County Board of Supervisors, Appeal No. 03-0734, and can be
found on the internet at http:\\www.wisbar.org\res\capp\2003\03-0734.htm.
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