Posted by: Patricia Salkin | October 20, 2015

WI Appeal Court Upholds Special Exception to Landowners for Construction of a Riding Arena as an Accessory Building

Nezih and Debra Hasanoglu appealed a circuit court order sustaining a decision of the Town of Mukwonago Plan Commission to grant a special exception to Michael and Laurie Hollern for construction of an accessory building. The Hasanoglus contended that the Plan Commission lacked jurisdiction to grant a special exception to the Hollerns. They further contended that the decision of the Plan Commission was arbitrary and unreasonable, and represented its will rather than its judgment in that: the Hollerns did not follow the proper procedure to apply for a special exception; the Plan Commission agenda was not sufficiently specific to give notice of the Hollerns’ request for a special exception; and the Plan Commission did not conduct a sufficient inquiry into whether the Hollerns’ proposed riding arena qualified as an accessory building.

The Hasanoglus first asserted that only the Town Board could grant a special exception to allow the Hollerns’ accessory building to exceed the size and height limits of the ordinances. However, Town of Mukwonago Municipal Code § 82–25(b)(3) provided that, “Upon petition from a property owner, the plan commission may grant a special exception to the maximum attached garage size limitations of subsection (b)(2) of this section or maximum accessory building square footages allowed in the table in subsection (a)(2) of this section …” The Hasanoglus next contended that the absence of any reference to “special exception” in the Plan Commission’s agenda and meeting minutes regarding the Hollerns was evidence that the Plan Commission acted improperly. Despite this, the Plan Commission’s agenda bluntly stated, “ACCESSORY BUILDING HEIGHT AND SIZE INCREASE FOR S64W27645 RIVER ROAD, MICHAEL AND LAURA HOLLERN PROPERTY OWNER.” Because anyone reading this description in advance of the meeting could understand what the Plan Commission was being asked to consider, the Plan Commission was not obligated to use any additional special language in the agenda and meeting minutes.

Finally, the court analyzed the Hasanoglus’ contention that the proposed riding arena did not conform to the definition of an accessory building. The court found that a riding arena can be larger than the principal building on a property and still be subordinate to it, not unlike a barn. Accordingly, the court upheld the decision of the trial court to grant the special exception.

Hasanoglu v Town of Mukwonago, 2015 WL 5943476 (WI App. 10/14/2015)


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