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September 22, 2019

7/27/2019 7:30:00 AM
Hazelhurst gravel pit lawsuit can move forward
Challenge to county rezoning survives legal standing scrutiny

Richard Moore
Investigative Reporter


A lawsuit challenging Oneida County's rezoning of a parcel in Hazelhurst to make way for a gravel pit survived its first legal test this week, with a circuit court judge ruling that most of the lawsuit could move forward and be heard on its merits.

A group of property owners and citizens called the Lakeland Area Property Owners Association (LAPOA) has challenged the rezoning as an illegal spot zoning, as a violation of state planned growth law, and as an illegal nonconforming use.

But before the case could be heard on its merits, Oneida County challenged the LAPOA's legal standing to bring two claims and contended that another was misdirected, asking that each claim be dismissed.

However, on Tuesday, Oneida County circuit judge Michael Bloom denied the county's motion to dismiss two of the three claims for relief brought by the group, enabling the lawsuit to continue.

Last year, by a 14-6 vote, the Oneida County Board of Supervisors approved a petition to rezone 10 acres of land in Hazelhurst from business to manufacturing-industrial use. County Materials Corporation (CMC) filed the rezone petition with the intention to use the site for non-metallic mining, specifically for a gravel pit.

Nonmetallic mining is prohibited in a business district, but is allowed in manufacturing-industrial.

The rezone does not itself enable CMC to mine the property without a conditional use permit (CUP), which the county has granted. However, in a separate action, the LAPOA is challenging the CUP. That matter is now before the county's Board of Adjustment.



This week's decision

In the LAPOA's first claim for relief, the group asserted in its complaint that the rezoning represents an illegal spot zoning. The subject property is a single parcel owned by a single owner and is thus spot zoning, the LAPOA's amended complaint asserted, the purpose of which was to facilitate CMC's private business operations and was solely for the benefit of CMC.

"The spot zoning, being solely for the benefit of CMC and not in the public interest, is therefore void under Wisconsin law and the court should so declare it as void and order such other relief as provided by law," the complaint asserts.

The defense had challenged that count on the grounds that the plaintiffs did not have legal standing to bring it, Bloom observed in his decision.

The judge pointed to a 2005 Court of Appeals decision, the Metropolitan Builders Association v. Village of Germantown, as being most applicable to the case at hand. Both parties had cited the case in their briefs.

"In the defendant's reply brief, the defendant argues that the Metropolitan Builders Association case pointed out a statutory basis to find standing for the party in that case, and that's correct," Bloom said.

In that case, the Legislature had determined that developers could contest impact fees because developers have an important enough pecuniary (financial) interest in the process of raising and expending the fees to deserve to be heard.

In addition, the village in Metropolitan had argued that in two previous cases the courts required a party to show a personal stake in the controversy and had required that stake to be pecuniary in nature. Thus, in case law and in statute, standing required a pecuniary interest.

But, Bloom continued, there was language from the Metropolitan decision that was important. To wit, the court in Metropolitan based its finding on the statutory grounds: "Because we deem the Legislature's judgment conclusive on the issue of the developers' standing, we need not separately apply our standing case law."

However, Bloom said, the Metropolitan court went on to say their decision did not contradict the two previous court of appeals decisions that the village had cited. Indeed, according to the Metropolitan court, the village had misread those cases: "We reject the village's apparent characterization of these cases as requiring a plaintiff to show an injury to a pecuniary interest as a prerequisite to standing in all declaratory judgment cases."

"This is a declaratory judgment case," Bloom said.

Bloom then quoted the next paragraph of Metropolitan: "(The two previous cases) make clear that both pecuniary and non-pecuniary injuries may suffice to give a claimant a personal stake in the controversy."

Metropolitan quoted from one of the earlier cases: "Similarly, Chenequa recognized that a variety of injuries could fulfill the personal stake in the controversy requirement. 'The injury asserted must be such that it gives the plaintiff a personal stake in the outcome of the controversy. The injury need not be pecuniary; it may, for example, be an injury to interests that are aesthetic, conservational, or recreational.'"

In other words, Bloom said, while the Metropolitan decision was based on a specific statutory standing, case law could also be applied for determining standing, and, Bloom continued, the Metropolitan court took the time to express its opinion that, based on earlier court decisions, both pecuniary and non-pecuniary injuries may suffice.

"Without belaboring the point, the factual allegations in the plaintiff's amended complaint are sufficient to give rise to an inference that aesthetic, conservational, or recreational interests of association members have been affected," he said.

At this point, Bloom reminded everyone, the only ruling he was making was about whether the allegations being made by the LAPOA were not so insufficient as to require dismissal.

"So, relative to the plaintiff's claim that the ordinance at issue constitutes illegal spot zoning, I'm finding that the allegations in the complaint are sufficient to give the plaintiffs standing," he ruled.



State growth law

In a second claim, the LAPOA maintained that, beginning in 2010, amendments to local county zoning ordinances must be consistent with that local governmental unit's comprehensive plan and that the county's comprehensive plan prohibits industrial development and uses in the area of the parcel in question.

The county cited two different previous court cases in its quest for dismissal, both of which it said supported its challenge to LAPOA's right to action, but the judge found the nature of the LAPOA case to be distinguishable from those cases.

"The cause of action in the plaintiff's amended complaint relative to alleged noncompliance (with state law) really go hand in hand with its claim that the ordinance at issue constitutes illegal spot zoning," Bloom said.

In fact, Bloom said, the amended complaint asked the court to "declare the county's actions void as illegal spot zoning and/or is contrary to (state law) and enjoin any use of the northern parcel for non-business uses."

The plaintiffs, Bloom said, also pointed to a declaratory judgment statute that gives the plaintiffs a statutory right to challenge the ordinance's compliance with the state law.

That language of that latter law indeed requires that, as of 2010, if a local government amends its zoning ordinance, that ordinance shall be consistent with its comprehensive plan, Bloom said.

Bloom said he could not find any previous court decision addressing that specific issue. A 2003 court of appeals decision held that there was no requirement that zoning ordinances comply with comprehensive plans because they were advisory, Bloom noted, but that court also noted that, until 2010, those ordinances need not be consistent with comprehensive plans and so currently the comprehensive plans were merely advisory.

"The logical upshot of that language is that, after Jan. 1, 2010, which is certainly the timeframe that applies to this lawsuit, it was not merely advisory," Bloom said. "Now, I'm not making that ruling at this point because, again, this is merely to determine whether or not the plaintiff's complaint is so insufficient that it can't survive a motion to dismiss."

Bloom then quoted a state statute that declared that "(a)ny person ... whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, ....."

"Construction, validity," Bloom said. "Statute, ordinance. What the plaintiff is claiming is that the proper construction (of the subject state law) would render, based on what the plaintiff alleges in its complaint, the zoning ordinance at issue in this case to be invalid."

This was different from the cases cited by the county, one of which involved a person seeking to compel a town to do certain things that it alleged were required under a statute, Bloom said.

"In this case, the plaintiff is in essence requesting the court to rule that the underlying county zoning ordinance at issue is invalid," Bloom said. "They are asking me to construe a statute and find it as requiring the county to enact zoning ordinances consistent with its comprehensive plan."

While that request for relief was not consistent with the two cases cited by the county, Bloom said, it did fit neatly into the language of the law he cited giving people the right to have a court make a determination about the construction or validity of a statute or ordinance.

So, on the second claim (actually, the third claim in the amended complaint), Bloom denied the motion to dismiss.



Illegal nonconforming use

Bloom did grant the county's motion to dismiss a third claim, that of an illegal nonconforming use.

In the amended complaint, the LAPOA asserted that use of a property for a non-conforming use after that non-conforming use has lost its "grandfathered" legal status is a not a permitted use of such property and is thus not permitted by county ordinance.

"CMC's planned use of the northern parcel and the southern parcel as part of a single gravel mining and extraction operation, which CMC is pursuing through the rezoning and CUP granted to CMC, renders its existing operation and use on the two parcels an illegal non-conforming use of the southern parcel," the complaint charged.

In effect, Bloom summarized, the plaintiff was asserting that the new operation would effectively expand an existing nonconforming use by a private party on a separate parcel.

Bloom said he agreed with the county that the state law that establishes a mechanism to force compliance with ordinances - either by the county or by people with real estate within the district affected by the regulation - is a mechanism by which such an owner of real estate can seek injunctional enforcement of existing zoning ordinances against whoever is not following those ordinances.

In this case, Bloom said, that would be CMC, not the county. Because that cause of action did not lie against Oneida County, Bloom dismissed the claim.

Not that issues in the claim were moot, Bloom said.

"It is not necessarily irrelevant, and the allegation that the plaintiff brings in its complaint about the effects of the rezoning of the northern parcel, insofar as expanding the nonconforming use of the other parcel, may well be a factor that the court needs to consider in terms of making its determination as to whether this ordinance constitutes illegal spot zoning," he said.

But that is a separate consideration, he said.

"While it may have relevance to the spot zone issue," he said, "it does not constitute a cause of action against the county."

Richard Moore is the author of the forthcoming "Storyfinding: From the Journey to the Story" and can be reached at richardmoorebooks.com.





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