Posted by: Patricia Salkin | January 13, 2021

WI Appeals Court Dismisses Homeowners’ Claims Challenging Rezoning for Senior Assisted Living Facility

This post was authored by Matthew Loescher, Esq.

Senior Campus at Campbell Woods LLC petitioned the Village to rezone approximately eight acres of a twenty-acre parcel for construction of a senior assisted living facility. The Village’s zoning staff recommended approving the developer’s petition because the project was similar to other assisted living facilities in the Village, and was consistent with the Village’s 2035 Comprehensive Land Use Plan. However, after homeowners objected to the project, the plan commission denied the rezoning petition and the conditional use permit and sent the petition to the Village Board. In a four to three vote, the Board approved the petition, and the homeowners sought a circuit court declaration that the ordinance constituted illegal spot zoning. In this case, KR Legal Defense Fund, U.A. and the Campbell Woods Homeowners’ Association, Inc. appealed from a circuit court order granting summary judgment to the Village of Mt. Pleasant and Senior Campus at Campbell Woods, LLC and dismissing the appellants’ claims.

On appeal, the homeowners claimed that the circuit court should not have decided the case on summary judgment, and that the Village could not rezone without establishing that the rezoning – which benefitted a single property owner’s development – was in the public interest. The homeowners further argued that because there were disputed material facts as to whether the zoning change was in the public interest and not solely for the developer’s benefit, the circuit court erroneously granted summary judgment. Despite this assertion, the homeowner appellants’ brief failed to identify the allegedly disputed facts that could have precluded summary judgment. Here, the record indicated that the Board considered if the rezoning was consistent with long-range planning and based upon considerations affecting the whole community, the nature and character of the parcel, the use of the surrounding land, the overall scheme or zoning plan, and the public interest. Based on the aforementioned, the circuit court concluded that there was a reasonable basis to rezone.

The court next analyzed the homeowners’ second claim on appeal, that Trustee Feest believed that the requested RM-4 rezoning was a subset of the property’s existing R-100 zoning. The record reflected, however, that Trustee Feest’s deposition testimony clearly acknowledged that rezoning was required for the project even as he considered that the project was consistent with permitted conditional uses in the R-100 zoning district. The court found that reviewing whether the proposed use was consistent with permitted conditional uses was an appropriate consideration. Accordingly, the court held that homeowners failed to establish that Trustee Feest grounded his approval to rezone in a misunderstanding of the Village’s zoning code, and affirmed the circuit court’s decision to grant summary judgment and dismiss the homeowners’ claims.

Campbell Woods Homeowners Association, Inc. v Village of Mt. Pleasant, 2021 WL 115453 (WI App. 1/13/2021)


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