Agenda - Planning Commission - 09/01/2005

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August 10, 2005 -- Page 7 property rights, still resulted in an amendment to the zoning ordinance that invoked the notice and hearing requiremen[s of the local zoning procedures law. The amendment of a zon/ng ordinance in violation of those procedural requirements was without any legal force or effect, and the party requesting the amendment did not acquire any additional rights in his or her property. see also: Greater Atlanta HomebuiIders Association v. DeKalb County, 588 S.E. 2d 694 (2003). see also: RCG Properties LLC v. City of Atlanta Board of Zoning Adjustment, 579 S.E. 2d 782 (2003). Appeal -- Board of adjustment believes it can't make substantive rulings Affirms zoning committee decision based on perceived lack of power . Citation: Osterhues v. Board of Adjustment for Washburn County, Supreme Court of Wisconsin, No. 2003AP2194 (2005) WtSCONSI/'¢ (06/28/05) --The Washburn County Zoning Committee granted a conditional use permit to allow a gravel pit Within the town of Beaver Brook. Osterhues and other neighboring property owners opposed the project. They appealed to the County Board of Adjustment. However, the board af- firmed the committee's decision because it believed it could decide ordy proce: dural issues, ng, t substantive ones. Osterhues sued, and the court ruled in his favor. The board appealed, claiming it did not have the power and full authority to fully review the committee's decision. The appellate court ruled in the board's favor, and reversed the lower court's decision. Osterhues appealed to the state supreme court. DECISION: Reversed. The board used the wrong theory of law in making its decision. The board believed it could not substantively disagree with the committee, and that it could do nothing unless it found procedural errors. However, the board had the authority to perform a complete new review of the committee's decision, and it could hear additional evidence if necessary. The applicable statute gave the board "all of the powers of the officer from whom the appeal is taken" when "error is alleged." Also, the Wisconsin law was based on a model statute used by almost all other states, and other states consistently agreed the board had the power of a completely new review. Finally, in prior decisions, boards of adjustment commonly exercised com- pletely new reviews and took additional evidence when reviewing conditional use permits. xee also: Ziervogel v. Washington County Board of Adjustment, '676 N.W. 2d 401 (2O04). xee also: Ifalat v. Circuit Court for Dane County, 681 N.W. 2d 110 (2004). ,:cD 2005 Quinlan Publishing Group. Any reproduction is prohibiled. For more information please call (617) 542-0048. 69