Agenda - Planning Commission - 06/01/2017

Home

May 25, 2017 I Volume 11 I Issue 10 Zoning Bulletin Cormick's ability to obtain approval from the City to build 128 apart- ment units on the lot. McCormick prepared a PDD-SIP application for the 128-unit apart- ment complex. Over 600 City residents opposed the proposed development. The residents' primary concern with the proposal was that it did not comport with the original PDD-GIP to develop senior housing. While the PDD-SIP application was pending, the City adopted an ordinance (the "Ordinance"), which rezoned Lots 53 and 54 (the "Prop- erty") from PDD-GIP to R-M. That rezoning limited McCormick to the potential development of 28 dwelling units, compared to a maximum of 132 dwelling units allowable under the PDD zoning classification. McKee and McCormick filed a legal action. They asked the court to declare that the rezoning of the lots was unlawful. Finding no material issues of fact in dispute, and deciding the matter on the law alone, the circuit court issued summary judgment in favor of the City. It concluded that the Property was rezoned in accordance with Wisconsin statutory law. McKee appealed. On appeal, McKee asserted that it had a vested right in the PDD zoning classification. McKee also asserted that a PDD clas- sification creates a contract that gives rise to expectations on which developers may rely. The court of appeals determined that McKee did not have a vested right in the PDD zoning classification when the City rezoned the lots. In so holding, the court pointed to the fact that Wisconsin follows the "bright -line building permit rule." Under that rule, a property owner's rights do not vest until the developer has submitted an application for a building permit that conforms to the zoning or building code require- ments in effect at the time of the application. McKee again appealed. On appeal, McKee argued that even though it had not submitted an application for a building permit, it nevertheless had a vested right in developing the land under the PDD zoning clas- sification because it had made substantial expenditures or incurred substantial liability based upon reasonable expectations established by the City's actions. McKee urged the court to drop the bright -line building permit rule, and to instead apply a case -by -case analysis based on whether "significant expenditures" were made in reliance on government action. McKee further argued that "to the extent the zoning classification is contractual in nature it also creates expectations upon which developers may rely." McKee relied on language in the City Ordinances that referred to a PDD zoning classification as an "agreement [that] is reached be- tween the property owner and the [City]." McKee thus argued that the court should decline to apply the building permit rule because a PDD is a form of negotiated zoning that a developer may rely upon once adopted by the City. 10 © 2017 Thomson Reuters