History of the Rezoning That Triggered This Appeal
This page outlines the history of the specific case in reverse-chronological order. The most recent events are at the top, and any new developments will appear at the top of the page. The actual court documents are linked here. (In all documents, we are the petitioner, and the county is the respondent.)
January 10, 2023: The record will be filed with the Appeals Court. Since the preparation/filing of the transcript was delayed, the filing of the record with the court of appeals was also delayed. The filing of the record triggers the 40-day time period for the County’s opening brief, which will be due February 19th. Our brief will be due 30 days after that, on March 21st and then the County will have 15 days to file a reply brief. The average time between full briefing and a decision is 2-4 months. Thus, the briefs would all be filed by early April, and then the decision could come between early June and early August.
October 31, 2023: The county is appealing the decision. Some documents related to the appeal:
Transcript of oral ruling, August 14, 2023
Transcript of oral ruling, part 2, September 25, 2023
County's docketing statement, filed October 31, 2023
October 5, 2023: The final judgment notice (the formal document conveying the judge's ruling).
September 27, 2023: The Jefferson County Executive Committee voted to appeal the ruling. It goes next to the Finance Committee and then (we believe) the whole County Board on October 10. This appeal would specifically be of the judge's ruling that the county did not follow the required process (making the required findings).
August 14 and September 25, 2023: Oral rulings by the judge that the rezone did *not* comply with the Farmland Preservation Law requirements.
The judge ruled in our favor on one statute!! But he did not issue a ruling on the other statute involved in this case. On September 25 he vacated (overturned) the rezone because he considered that the county had not made the required findings. The property owner could re-apply for rezoning, but it would likely not succeed. Details:
Wisconsin Statutes 91.48(1): Farmland Preservation Law: The judge ruled that the county did not make the required findings.
This law requires the county to make certain findings before rezoning out of the farmland preservation district. In reviewing the record (transcripts, minutes, etc.), he did not find anything that amounted to making the required findings. (Our lawyer had predicted that "any reasonable judge" would agree with us on this aspect of the case, as the lack of findings was pretty clear-cut.) The county is considering appealing this decision.
Wisconsin Statutes 66.1001(3)(j): Comprehensive Planning Law: The judge declined to rule on whether the rezone conflicts with the county's comprehensive plan.
May 30, 2023
The oral arguments took place on Tuesday, but the judge did not issue a decision yet; he will issue an oral or written decision within 60 days. Our impression is that he had not read the briefs (or only skimmed) and realized that he needed to learn more about the case. He asked hardly any questions and seemed unsure of the possible courses of action. If you'd like to know more about the law at stake and the key arguments, here is a summary: Legal Rationales (pdf)
May 15, 2023
Petitioners' Reply Brief. Our attorney, Mary Beth Peranteau, prepared our reply to the county's response. It once again focuses on the county's own plan and the county's requirement to follow its plan. Also, the law requires the county to make specific findings when rezoning to A-2, which the county did not do. (In proper procedure, those findings ought to have been listed in the rezone amendment that the county board voted on, but they were not.)
May 1, 2023
County’s Response Brief. Blair Ward, the county's corporation counsel, included materials that are likely not admissible in court. Our case is a "review of the record" and by law is confined to the record of this case. So information about other rezonings, for example, generally should not be included. We've asked to have that material disregarded. Ward otherwise focuses on the town board vote and the town plan. He says that the town board vote indicated that this was consistent with the town plan, and that if the rezoning was consistent with the town plan, that makes it consistent with the county plan automatically. If the judge affirmed that, that would mean that anything the town board approves is automatically consistent with the county plan. I don't think the county actually wants that to be the case!! It's also certainly not in line with case law or the wording of the comprehensive planning law.
March 31, 2023
Our opening brief (our legal arguments) has been filed with the court. It lays out in detail the steps that the law requires that were not taken and explains what the County and Town Comprehensive Plans say about this rezoning. It points out what the results would have been if the law had been followed during the rezoning decision. It’s an interesting read.
March 29, 2023
The County has finished filing the administrative records with the court. The purpose of these records is to exhibit the steps taken to arrive at their decision to rezone the A-1 farmland to A-2 for non-farm use.
November 11, 2022 County answer to complaint filed with the Circuit Court
The county admitted it has to follow town plans when taking land out of farmland preservation. But they are claiming that because Concord waited to update the town plan till after the ten-year anniversary of adoption of the plan, the plan wasn't in effect when they did the rezoning. There are a number of counterarguments to that view. A scheduling conference will take place on January 10th, which will set the dates for the rest of the court proceedings (our initial brief outlining our arguments against the rezoning, the county's reply, our response, and any oral arguments).
October 14, 2022 Complaint filed with the Circuit Court
The complaint was filed with the Circuit Court on October 14 and served on the county on October 24.
August 23, 2022 County Board meeting
The claim was brought before the County Board. The Defend Town Plans attorney did a video presentation explaining that the claim was not for monetary damages. The claim asks the county to redo the rezoning of the Brunson property and this time follow the state statutory requirements.
Blair Ward, the county attorney, said he referred the claim to the county insurance company even though the insurance company would not cover this case because we are not claiming monetary damages. Blair then recommended the county supervisors vote to deny the claim, which they did by a voice vote. The next step is appealing in Circuit Court.
Because county's lawsuit insurance does not cover non-monetary claims, the county will have to hire its own defense lawyers to argue that the county does not have to follow the state statutory requirements.
July 25, 2022 County Planning & Zoning Committee decision meeting to review the Defend Town Plans claim
The county Planning and Zoning Committee acknowledged receiving the claim from Defend Town Plans, and then the Defend Town Plans attorney outlined the claim via Zoom, which they pretty much ignored. There was a brief discussion about how approving the removal of the Brunson property from farmland preservation relates to the Zoning Committee’s other decisions. Nothing was mentioned about the decision process not following state statutory requirements or being contrary to the Concord town plan as was stated in the claim. Blair Ward, the county attorney, recommended the committee deny the claim. This sent the question about denying the claim to the whole County Board.
June 23, 2022 County Served with Notice of Claim
A citizen organization, Defend Town Plans, filed a notice of claim against the county alleging that the county erred in its decision to take the land in question out of farmland preservation and rezone it for business purposes. We have heard that the county will be considering this claim at the July 25 meeting of the Planning & Zoning Committee and the August 23 meeting of the County Board.
May 9, 2022 Town Board Meeting
The Boat House petition was on the town agenda for reconsideration. Only 2 supervisors were present. One supervisor indicated that he would not change his vote of approval for the rezoning. No action was taken on the petition, and the county approval was allowed to stand.
April 19, 2022 County Board meeting
A number of Concord citizens spoke in opposition to the Boat House proposal.
During the meeting, corporation counsel advised that approval of the decision followed the county plan. Several Zoning Committee members took issue with the fact that our town plan is out-of-date (which hadn't come up in discussion before). They also claimed they had given the town a month to fix this situation before taking it back up. This isn’t really true as no deadline had been set on February 28 when the decision to postpone was made by the Zoning Committee (this is clear when listening to the audio of the Feb. 28 meeting). The corporation council also informed the board that the Town Board would have an opportunity to revote on the proposal within 40 days and could overturn their original decision.
The County Board passed the petition to rezone (about 11 members of the 30 member board voted against the petition).
March 28, 2022 County Planning & Zoning Commission decision meeting
The commission reconsidered the Boat House petition. On the advice of county zoning staff, the county changed its policy on adherence to town plans when considering rezoning petitions. Zoning staff advised the committee that rather than base their rezoning decisions on consistency with town plans, they should instead show consistency with the vote of the town board. Legal counsel was not present to provide comment or advice.
Note: County staff have resisted saying that they just ignore town plans. They want to claim that they take town plans into account even as they ignore citizen protests and our town plan on this particular issue. Their wording is that they take the Town Board’s vote as certifying compliance with the town plan. This is an interesting position to take as the town supervisors who voted for this have made no effort to hide the fact that this decision was incompatible with the town plan and was made for personal reasons to help a friend who is having financial difficulty.
Feb. 28, 2022 County Planning & Zoning Committee decision meeting
The five-member county zoning board all agreed that the county policy is to adhere to town plans. The commission voted 5-0 to postpone any decision on the Boat House proposal and send the petition back to the town, saying that the town should either change their plan or deny the petition.
Feb. 17, 2022 County Planning & Zoning Committee public hearing
At this hearing, seven town residents spoke in opposition to the petition, citing inconsistency with the Concord town plan and concerns with the development itself. Nearby residents voiced concerns with the existing Boat House site. Concerns included extremely bright nighttime lighting, excessive year-round traffic, traffic back-ups along Hwy B caused by boat transporters, lack of landscape/screening maintenance, and water run-off. Additionally, a petition in opposition to the proposal, signed by 40 town residents, was presented.
Jan. 10, 2022 Town Board meeting
The Town Board voted 2-1 to approve the rezoning. The town supervisors voting to approve the proposal acknowledged that the request was inconsistent with the town plan. They stated however, that they looked upon the town plan as merely a “guide” and not as a document they were legally required to adhere to.
Dec. 22, 2021 Town of Concord Plan Commission meeting
The Town Plan Commission considered the petition to rezone 7.4 acres from Agricultural Preservation to Agricultural Business for the purpose of erecting 10 additional boat-storage buildings at W1432 County Road B. The land in question is adjacent to the current Boat House facility but is outside the boundary of the town hamlet. The Plan Commission voted to recommend denial of the petition because it was inconsistent with the Town of Concord Comprehensive Land Use Plan. Four commission members recommended denial, and 1 abstained.
In December of 2021, the Boat House of Lake Country began the process of acquiring additional land to expand their boat-storage business in the Town of Concord. Their existing storage site in the town was approved in 2015. This existing site consists of 5 large storage sheds and is located inside the boundaries of the town hamlet.