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HomeMy WebLinkAboutPlanning & Zoning 09-24-08 NOTICE OF MEETING AND AGENDA PLANNING AND ZONING COMMITTEE WEDNESDAY, SEPTEMBER 24, 2008, 7:00 PM ST. CROIX COUNTY AGRICULTURAL CENTER 1960 EIGHTH AVENUE, BALDWIN, WISCONSIN CALL TO ORDER ROLL CALL ADOPTION OF AGENDA DATE OF NEXT MEETING — ACTION ON PREVIOUS MINUTES: NEW BUSINESS: PUBLIC HEARING NOTICE REZONING APPLICANT: Charles and Barbara Weyer LOCATION: N1 /2 of SE 1/4, Section 36, T28N, R17W, Town of Rush River ADDRESS: 46 US Highway 63, Baldwin REQUEST: To rezone approximately 43.159 + /- acres from Agricultural to Agricultural II pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. APPLICANT: Donald Ziegler LOCATION: SWIA of NEIA, Section 4, T3 IN, R17W, Town of Stanton ADDRESS: 61 County Rd. CC, Star Prairie REQUEST: To rezone approximately 2.35 + /- acres from Agricultural to Agricultural- Residential pursuant to Section 17.72 of the St. Croix County Zoning Ordinance APPLICANT: Jeremy Austrum LOCATION: SE 1/4 of SE 1/4, Section 28, T28N, R17W, Town of Pleasant Valley ADDRESS: 132 County Rd T, Hammond REQUEST: To rezone approximately 1.06 + /- acres from Agricultural- Residential to Agricultural pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. APPLICANT: Sharon A. Austrum LOCATION: NE 1/4 of SE1/4, Section 28, T28N, RI 7W, Town of Pleasant Valley ADDRESS: County Rd T, Hammond REQUEST: To rezone approximately 1.06 + /- acres from Agricultural to Agricultural- Residential pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. APPLICANT: John Bettendorf LOCATION: NE 1 A ofNE1 /4, Section 19, T28N, RI 8W, Town ofKinnickinnic ADDRESS: 285 County Road SS REQUEST: To rezone approximately 4.82 + /- acres from Agricultural- Residential to Commercial pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. ANNOUNCEMENTS & CORRESPONDENCE ADRC Remodeling Report POSSIBLE AGENDA ITEMS FOR NEXT MEETING: ADJOURN SUBMITTED BY: St. Croix County Planning and Zoning Office DATE: September 18, 2008 COPIES TO: County Board Office Committee Members County Clerk News Media/Notice Board MINUTES PLANNING AND ZONING COMMITTEE ST. CROIX COUNTY AGRICULTURAL CENTER, BALDWIN, WI September 24, 2008 Supervisors: Gene Ruetz, Sharon Norton- Baumann, Steve Hermsen, Lorin Sather Absent and Excused: Peter Post Staff: Kevin Grabau, David Fodroczi, Judy Olson Guests: Candace Bettendorf, John Bettendorf, Matthew Biegert, Dan Weishaar, Dan Krumweide, Catherine Munkittrick, Roger VanBeek, Lars Loberg, Greg Weyer, Judith Kirchner, Norman Kirchner, James Croes, Gordon Awsumb, Lilie Awsumb, Donald Schumacher, Charles Weyer, Mike Trade, Donna Trade, Ed Flanum, Jerry Ripley i Chair Ruetz called the meeting to order at 7:03 p.m. Motion by Norton- Bauman to adopt the agenda. Motion 2 nd by Sather and carried. The next committee meeting is scheduled for October 14, 2008 at 8:30 a.m. in Hudson. Action on previous minutes: none The public hearing notice was acknowledged for the record. APPLICANT: Charles and Barbara Weyer LOCATION: N1 /2 of SE1A, Section 36, T28N, RI 7W, Town of Rush River ADDRESS: 46 US Highway 63, Baldwin REQUEST: To rezone approximately 43.159 + /- acres from Agricultural to Agricultural II pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. Grabau reviewed staff report as well as three attachments showing maps of the proposed rezoning and the concept certified survey map. The purpose of the request is to create additional building sites. Staff recommends approval of the requested rezoning based on findings of fact stated in the staff report. 1. Based on TRC findings (# 1 -17) the rezoning is consistent or generally consistent with the County Development Management Plan and the County Natural Resources Management Plan. 2. It appears that the proposed use can comply with standards in the Land Use, Subdivision and Sanitary ordinances. 3. The proposed use is consistent with the spirit or intent of the ordinance. 4. A recommendation has been received from the Town of Rush River to approve the rezoning request and that the request is consistent with WSS 91.77. Chair Ruetz asked if anyone wished to speak. Charles Weyer spoke in favor of the request. Don Schumacher, Rush River Town Chair, stated that there were rumors that the owners were planning to do a commercial operation on the property. The comprehensive plan does not allow non - agricultural use of the property. Neighboring property owner Mike Trade stated that he would prefer the minimum lot size be 35 acres. Motion by Sather, 2 nd by Hermsen to approve the rezoning based on staff recommendations including the findings as stated in the staff report and that the request is consistent with WSS 91.77. Norton- Bauman asked if there was any correspondence that the Committee has not seen. Grabau stated that he received a phone call from a Town of Rush River resident asking for more information about this request and stating that he had also heard a rumor that the Weyers were planning to have a business on the property. Motion carried. 1 APPLICANT: Donald Ziegler LOCATION: SW 1 A of NE 1/4, Section 4, T31 N, R17W, Town of Stanton ADDRESS: 61 County Rd. CC, Star Prairie REQUEST: To rezone approximately 2.35 + /- acres from Agricultural to Agricultural- Residential pursuant to Section 17.72 of the St. Croix County Zoning Ordinance Grabau reviewed the staff report. The purpose of the request is to create a residential lot to sell. No recommendation has been received from the Town of Stanton at this time. Grabau stated that he received a call from the Town of Stanton chair who said that the Town approved this request, but the recommendation did not state that the request is consistent with WSS 91.77. That needs to be part of the Town recommendation. Based on the fact that a rezoning approval has not been received by the Town of Stanton, staff recommends that the Committee table their decision for no longer than 90 days to receive an approval from the Town. Agent Ed Flanum stated that he attended the last Town Board meeting. He and the Town Board didn't realize they needed a Town recommendation so soon. No one spoke in favor or in opposition. Motion by Norton- Bauman, 2 nd by Hermsen to wait until the October 14 meeting by which date a recommendation will be received from the Town of Stanton. Motion carried. APPLICANT: Jeremy Austrum LOCATION: SETA of SETA, Section 28, T28N, R17W, Town of Pleasant Valley ADDRESS: 132 County Rd T, Hammond REQUEST: To rezone approximately 1.06 + /- acres from Agricultural- Residential to Agricultural pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. Grabau reviewed the staff report and showed the rezoning exhibit map. Recommendation from the Town of Pleasant Valley was received stating that the request is consistent with WSS 91.77. Staff recommends approval. Ruetz asked if any one wished to speak. Jerry Ripley, agent, stated that he agreed with the statements and was available for questions. No one spoke in favor or in opposition. With no additional comments, Sather moved to approve the rezoning based on staff recommendations including the findings as stated in the staff report and that the request is consistent with WSS 91.77. Motion 2 nd by Ruetz and carried. APPLICANT: Sharon A. Austrum LOCATION: NE 1/4 of SE1 /4, Section 28, T28N, RI 7W, Town of Pleasant Valley ADDRESS: County Rd T, Hammond REQUEST: To rezone approximately 1.06 + /- acres from Agricultural to Agricultural- Residential pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. Grabau reviewed the rezoning request. Property will be attached to the Jeremy Austrum property. Staff received recommendations from the Town of Pleasant Valley stating that the request is consistent with WSS 91.77. Staff recommends approval. Agent Jerry Ripley stated that he is available to answer questions. No one spoke in favor or in opposition. Motion by Sather, 2 nd by Hermsen to approve the rezoning based on staff recommendations including the findings as stated in the staff report and that the request is consistent with WSS 91.77. Motion carried. Ripley requested a reduction in the application fee since this application and the Jeremy Austrum application were handled together. It was basically a swap of land. The Committee will handle this at its regular meeting. APPLICANT: John Bettendorf LOCATION: NE 1/4 ofNE1 /4, Section 19, T28N, R18W, Town of Kinnickinnic ADDRESS: 285 County Road SS 2 REQUEST: To rezone approximately 4.82 + /- acres from Agricultural- Residential to Commercial pursuant to Section 17.72 of the St. Croix County Zoning Ordinance. Grabau handed out extra information received by staff including comments from St. Croix County Highway Department; a packet from Dan Krumweide with letters from neighboring residents in opposition of the rezoning request; the approved CSM for approved commercial boundaries dated 1990; and a packet from resident Catherine Muntkittrick that she had sent to Committee members. Grabau reviewed the staff report and a map showing location of the property. He acknowledged that attorney Matthew Biegert, agent for the owners, was present. Grabau then reviewed the history of zoning of the site. Staff has received some governmental agency review from the Town of Kinnickinnic. Resolution #2008 -4 was received from the Town disapproving the application for this rezoning request. He reviewed the minimum actions required. He noted that there is also a nonmetallic mining operation on Bettendorf s property that is in violation with County ordinances. A special exception permit is required to operate a nonmetallic mine on a property zoned Ag- Residential. Bettendorf does not have a special exception permit to operate the mine. The mine is located adjacent to the site that has the trucking transfer operation. The Town of Kinnickinnic is disapproving the application for this rezoning request. St. Croix County Highway Department comments were received stating that if zoning changes or special exception permits were granted, the locations and dimensions of the driveway serving the site need to be addressed — driveway permit conditions. Staff recommends that the Committee disapprove the rezoning amendment for this parcel based on the following findings of fact: I. Based on TRC findings ( #1, 3 -5, 12, 13 & 17) the rezoning is not consistent with the County Development Management Plan and the County Natural Resources Management Plan. 2. The request is not consistent with the spirit and intent of applicable County Land Use Ordinances. 3. The approval of the rezoning request will result in a spot zoning, as there are no other similarly zoned properties in the immediate area. The spot zoning is not for a public purpose or would not result in public benefit, and would solely be for the benefit of the property owner. 4. The Planning and Zoning Committee has received a certified copy of a resolution adopted by the Town disapproving the proposed rezoning. The Committee may only forward a recommendation of disapproval or an approval with modifications. 5. Corporation Counsel has determined that industrial zoning is the appropriate zoning for a truck freight operation. Grabau showed a map with property location and an aerial photo of property showing buildings and storage facilities on site as well as the non - metallic mining operation. He also explained spot zoning. Chair Ruetz opened the hearing requesting anyone wishing to speak in favor of the rezoning. Candace Bettendorf, 285 County Road SS, reported that they started their business in the 1970s under Ag- Residential zoning. They had a home carpet sales business at the time and they thought the zoning transferred. They thought they had what was needed. As per County request, they rezoned to commercial in 1985. A CSM was accepted by the Planning & Zoning Committee. They have been taxed as commercial on a separate parcel including 2007 when the County announced that it wasn't commercial. There are four other trucking facilities in St. Croix County with similar operations. All are zoned commercial. The St. Croix County website shows no industrial category. The Town of Kinnickinnic was concerned that if the Bettendorfs were allowed to regain their commercial zoning they would have no authority over it, no input on the planning or zoning restrictions. That is the reason for the special exception permit process. In the 1997 process Kinnickinnic thought conditions should be added to the special exception permit. After discussion at the meeting, representatives could not agree on what conditions should be added so the permit was granted without conditions. That doesn't mean that the current board or plan commission could not approve conditions that must be met in the special exception permit. 3 That is the reason that the County has this with the restriction that the town requires. Conditions can also be spelled out in a developer's agreement issued by the Town. In 2004 during Kinnickinnic's comprehensive plan development process, the Town hired and paid a student, Bob Herling, to do much of the information gathering and planning. As part of that planning, Mr. Herling drew up a map that was called Logical Locations for Commercial Development. The Bettendorf commercial development at that time was on the logical location map, partly because it had been there for so long and partly because the State was planning some big intersections near there and the City of River Falls was planning some commercial things there. During the current process of applying to regain the commercial zoning for the property that has been zoned commercial since 1985, one of the plan commission members found out that the map existed. She had not read the comprehensive plan during its 2' /z year development process and had missed several meetings though she was a member of the committee developing the plan. She stated at a meeting that that map was going to go even though the planning that was done by Mr. Herling had been approved in 2004 by the plan commission and continually heralded by the plan commission and its chairman as an excellent part of the plan process. All of his work was eliminated from the comprehensive plan at the next plan commission meeting. All of this because on his report Bettendorf was on the corridor approved for commercial development. This same member of the Kinnickinnic plan commission stated that spot zoning was illegal in St. Croix County so it would be illegal to spot zone Bettendorf as commercial. There are two other spot zoned locations in the Town of Kinnickinnic. In St. Croix County it is not uncommon to have sites spot zoned as commercial. The Bettendorf location has been zoned commercial since 1985 and a home business permit for 10 years before that. The Kinnickinnic plan commission stated that the trucking operation could be dangerous on County SS, yet there have been no accidents in the 28 -year history of their trucking operation. People walk, jog and bike on the highway. Their operation only affects one -half mile of County Road SS. It was designated an official bike route several years ago during their busiest years of trucking. The plan commission says there is no other commercial zoning near the Bettendorfs. Although they are not officially zoned commercial because they are ag related, three commercial activities are near them. Earthworks and Kinnickinnic Native Plants both sell to the public, increasing traffic. Also one neighbor runs a small engine repair home business with traffic in and out on the supposedly dangerous corner. That business is apparently sanctioned by the Kinnickinnic Town Board and plan commission as several members have been heard to say that they bring their small engine items there for repair. The Bettendorfs paid commercial taxes on their commercial property for many years including 2007. Either someone feels that we are a commercial entity or we are owed years of back taxes. Responding to the complaints that surrounding property values decline if their commercial zoning is restored, she stated that those concerned neighbors moved here while their trucking business was running. The property values are not likely to go down due to them running their trucking business. They have had a trucking business since 1979. One plan commission member solicited reaction from neighbors. According to the affidavit given by one neighbor, he appeared to be soliciting people to oppose the Bettendorfs zoning request. He indicated that if zoned commercial Bettendorfs would sell to a big operator that would run 100 trucks per day out of the property. It is in clear violation for a plan member to do this. All of the evidence that was supplied by neighbors during that solicitation should be discarded as it was forced. In a document to the Kinnickinnic plan commission, a plan commission member states "there is also no showing that a refusal to rezone will deprive the applicant of all beneficial use the property. The property is zoned ag- residential and it can be used for all the permitted uses in the ag- residential zone, primarily agricultural and residential. The trucking equipment can be sold as well as the truck routes." On the property that has been zoned commercial since 1985 and was run with a special home business permit before that, there is a 12,000 square foot warehouse with 10 surrounded by two acres of blacktop. There is also a 6,000 square foot warehouse with . She stated that she doesn't see how either of those buildings would be used for either agricultural or residential, or the two acres of blacktop. Selling of truck routes ceased in 1982 when the trucking industry was deregulated. The value of the property has not been addressed — the difference between the value of commercial and the value of ag- residential. They have been in one business or another at this location since 1974. They have had a home business permit since 1979 when they switched to the trucking business. In 1985 they got commercial zoning. In 1990 a special exception was issued for the property that was being used for the same business. Bettendorf stated that this has been 4 stressful to them. She has spent time in the hospital. She has dealt with depression, embarrassment. They work 12 -16 hours a day with planting and harvesting. She questioned why people move somewhere near a business, then don't think that business should operate. Attorney Matthew Biegert, representing the Bettendorfs stated that some of the history provided by the staff is inaccurate. The 2007 property tax shows the property is commercially zoned and showing buildings worth $871,500. In 1985 the County took the contrary position to every argument it is making today. It rejected the argument that this was not compatible with the neighborhood. Now County staff takes a 180 degree different position. This is after the Bettendorfs relied on the Town's action which did not oppose the commercial zoning in 1985. The property owners have made a million dollar investment not including trucks and other equipment.. Are the Bettendorfs going to loose everything? It was their understanding that the 1990 action had removed the condition concerning transfer of ownership that they now had the property clear for truck transfer. When they wanted to sell in 2004 they found that Corporation Counsel was taking a different position. They brought a declaratory judgment action for the purpose to declare their rights. Either they have this provision in and it is valid or we do not have the provision. Corporation Counsel, without apparently consulting this body or the Board, took the position that what would be appropriate is, based on the inclusion of that provision, the inclusion of the provision was an error by the County that the provision was illegal and the entire zoning should be wiped out. So they proceeded with litigation. The Court of Appeals agreed that that provision was central to the rezoning. His understanding is that, during that entire process, there was no input from elected officials on the position the County would take. They tried to come before the body in 2007 while it was in litigation, but were not allowed. They are asking to resolve the matter now. The Bettendorfs have tried to get commercial zoning for 23 years during which they have operated a commercial business and paid commercial taxes, operating under commercial zoning. There is a bias against the Bettendorfs with the whole issue of industrial zoning. This business operated as commercially zoned for 23 years and no one suggested that it should be zoned industrial. Other trucking operations in the County are zoned commercial and have not been shut down because they are not zoned industrial. The Bettendorfs want fairness. No one else in the County has these types of arguments going against them. He stated that one of the major conditions in the staff report is that this commercial operation is inconsistent with the plan. It was adopted in 2002 knowing that this operation was zoned commercial. It is not reasonable or fair to go back and say this operation has to comply with that 2002 plan. It has been stated that we want farmland to be preserved, but this is commercial buildings with an asphalt parking lot, not usable farmland. It is a commercial operation. If rezoning is not approved, there will be some zoning enforcement action and some derelict unused buildings there. The Bettendorfs cannot afford to tear down the buildings. Biegert encouraged Committee members to go look at the site and buildings. Only two adjoining property owners support rezoning to commercial. The people opposed to the rezonings are those who want to shut a business down. What are the harms of operating a commercial business that has been operating for 23 years. The truck traffic on County SS is for a very short distance. There is a special exception permit process that could put conditions in place and limit effects from this business that might disturb the surrounding neighborhood. The Town of Kinnickinnic has no commercial zoning area, only individual parcels which they have zoned commercial. Spot zoning has been done in some areas. There are three other parcels on town roads that are more isolated and less amenable to commercial development that have been approved by the County for commercial development. The Bettendorf's trucking business is a needed business in the area. What is most problematic for this body is the fact that the Town is opposing. The Town had opportunity in 1985 to express opposition. At this point the Town cannot change its position on this parcel. The court decision was to put it back to what was done in 1985, what was initially passed was illegal. He stated that they are trying to avoid litigation and trying to find a solution that the County and applicants can live with. He understands the need for conditions placed on commercial property by special exception permit. To avoid problems this should be granted retroactive to 1985. In summary the body has spoken and decided that commercial zoning is appropriate and rejected the arguments that have been made by the opponents. The Bettendorf's business was active for 23 years. They have built expensive buildings and are now being stripped of their commercial zoning. They understood that when the zoning was originally enacted there was the possibility that the zoning would be lost when they transferred the property but thought that was resolved in 1990. The staff cannot locate those records. 5 It is not appropriate that they be stripped of the opportunity to make a living. The Committee should recommend approval with modification that it would be retroactive to 1985. That should be put to County Board and Corporation Counsel can give advice on whether or not that is appropriate. Biegert requested one additional exhibit be considered, his letter to the Kinnickinnic plan commission dated June 16, 2008, that sets out the amount of truck traffic from this operation. It also sets out the other commercial zoned parcels in the Town of Kinnickinnic and their locations as well as the other commercial trucking operations in the Town. Gordon Awsumb, 1207 River Drive, former County Board member, urged the Committee to approve the rezoning. He stated that he spent much time on this issue and attended many meetings. It is a matter of fairness. He read through meeting notes from 1990 noting the attendees including previous staff members, Corporation Counsel Greg Timmerman. He talked to former County Board members that were there and the former County Board Chair Richard Peterson. Three of those persons said Corporate Counsel's position on this was not correct. Approval was granted unconditionally. Awsumb then tried several times to schedule a meeting for the Bettendorfs with David Fodroczi and Greg Timmerman. It turned out to be a closed session meeting. Former County Board Chair Richard Peterson came in to testify as well as Mr. Stephens and Mr. Bader who was a witness for Mr. Bettendorf. Awsumb was a County Board member and was illegally excluded from the meeting. He questioned if there is an alternative agenda. He stated that he has never seen anything so contentious by so small number of people opposed to this. Awsumb distributed highlighted copies of the judgments from Judge Needham stating that the zoning was awarded and they could sell their business if they wish. He also distributed copies of the appeals court judgment that overturned the previous judgment. Along with this he presented a letter of negotiation from the County Attorney proposing that the Judge impose a fine on the Bettendorfs retroactive to 1985. He wants a $100 - $500 per day fine going back to 1985 against the Bettendorfs for being in business. This equals a 2.7 million dollar fine. Former County Board Chair agrees with the Bettendorfs. Awsumb stated that he believes the Planning and Zoning staff has been intimidated by the County Attorney. There is a very dysfunctional relationship with the County Attorney and Planning and Zoning staff. This whole situation has been run at the suggestion of the County Attorney. This has not been handled in the best interest of the County. These are citizens who followed the law, relied on the law and built a multi - million dollar business, live on a 100 -year farm and are having everything taken away, their health ruined, hundreds of thousands dollars in legal fees. We need to go back and fix the mistake that was made by the County. The County admitted to Mr. Timmerman that he had made a mistake in drafting the ordinance. He admitted it was drafted wrong and therefore it is void. They should have been able to rely on government to get a permit for building a million - dollar building. It has been a contentious issue at the Town board level. There is a small group of longtime neighbors, the Town Attorney and the attorney on the Town plan commission who are on board together and will speak in opposition. The Bettendorfs got their permit in 1990. It was unconditional. They won in court two times and they only lost on a technicality in the appeals court. What should they do at this time? The County made a mistake and they should not have to lose their million - dollar business. As a former County Board member Awsumb asked whether we manage our litigation or let the County Attorney run wild. Awsumb also stated that the County Attorney told him that he made the decision to appeal this. That was not a decision that he should have made unilaterally and was not authorized to ask for a 2.7 million dollar fine. It's five acres out of a several hundred acre farm. It doesn't hurt the environment. Other farms in the State have little sand pits. This farm has a pre -1989 sand pit which is exempt from regulations. But a reclamation plan was submitted to Planning and Zoning. The Bettendorfs don't want to be in non - compliance. It isn't spot zoning. There is commercial zoning all over. We should put ourselves in the Bettendorfs' shoes. The County needs to correct the problem. They deserve to have their business. Lilie Awsumb, 1207 River Drive, spoke in favor of the request. The County approved the rezoning in 1985. The objections and dire predictions that were made at that time have not materialized. In 1990 the County issued a special use permit. Again there were objections and dire predictions that have not materialized. Objections that have been presented at the County level have not been documented. In addition, the objections have often been anonymous. Rumors have been started and phone calls made without any names attached and no documentation. The Town of Kinnickinnic has finished the process of developing a comprehensive plan. As 6 part of the process people of the Town came to Town meetings sponsored by the Town board and plan commission and viewed the maps that included the Bettendorf area as a logical place to have commercial development. Those meetings were heavily attended. The overwhelming majority of the people approved of that area as the proper place to consider commercial development. There is a plan commission member present who is in opposition to the Bettendorf application. She did not attend all the meetings. When it was time to approve all of the work on the comprehensive plan, she objected because she had not been there during the time that the commercial corridor was discussed and approved. She lobbied to have that removed entirely from the comprehensive plan — all of the language and all of the maps. Mrs. Awsumb stated that as a member of the public and a resident of the Town of Kinnickinnic, she believes that the Bettendorf operation does public good in three ways; 1) is a local service, 2) employs local people and 3) it provides local tax revenue. She has spoken to many of her neighbors and as anonymous as the objectors are, there are many anonymous supporters. The Committee recessed from 8:40 to 8:45 p.m. With no one else speaking in favor, Ruetz requested anyone wishing to speak in opposition. Catherine Munkittrick, 1108 Town Hall Drive, spoke in opposition of the rezoning. She stated that she has been a member of the Kinnickinnic plan commission for several years, In the decision the court of appeals decision reversing the trial court decision it was decided that the condition on zoning amendment from ag to commercial was invalid and could not be severed from the ordinance. The court of appeals looked at all records from when this property was rezoned in 1985 and all the minutes. Both parties were represented by attorneys, and in looking at all that the court decided the County would not have rezoned the property from ag- residential to commercial without that condition limiting it to the Bettendorf use only — not assignable, not salable. That is why the court found the zoning ordinance amendment to be invalid. What the court was trying to put in is in fact what the County had intended in 1985 except as a matter of law the County couldn't do that. The court found the County would have not rezoned that land if it hadn't made it conditional. That was why the court of appeals reversed the trial court and invalidated the zoning ordinance. The first zoning application in 1985 requested rezoning of 10 acres. The County Board said "no." They reduced that to five acres. We can't go back to 1985. The court of appeals said that it would not have been rezoned if it hadn't been made conditional. There was much talk about reliance. Bettendorf relied on rezonings. They were represented by counsel. They knew of the condition. If they objected to that condition, they could have litigated it then, but chose not to. Can it be said that they relied on the County Board's action when the County Board specifically said it was limited to their use only. Now 23 years later they would like to sell the property and they have to deal with that condition. They are trying to change what the County Board did in 1985. Not trying to put it back to 1985 — trying to make it commercial without conditions. What they initiated on this matter is that the County would not have rezoned to commercial in 1985 without the condition. The condition was invalid. Munkittrick recommended to the Committee to look at the zoning ordinance and the proposed use and determine if the proposed use meets the terms of the zoning ordinance and the other variance planning that the Town and County worked on over the past 23 years. We are not in the same place as in 1985. Land use, development and desires have changed. It was a different County Board and a different Planning and Zoning Committee. Look at current ordinance and base decision on that. It is the Committee's job to make its decision on that. Under the language of the County zoning ordinance regarding commercial uses, even if it were to be considered commercial, it states that non retail commercial enterprises are not allowed in the commercial district. The proposed use is for a truck transfer operation, a non - retail commercial enterprise The zoning ordinance does not allow that. To approve you would violate your own zoning ordinance. This is not an effort to strip someone of their zoning. The court of appeals made a decision that must be lived with. The Committee must determine what is best under the current zoning ordinance, not 1985, even when the rezoning wouldn't have occurred without the condition. This proposed use is inconsistent with the ordinance. It would clearly be spot zoning. Even if there are other instances of spot zoning in the County this is no reason to now engage in spot zoning. The request is to rezone a five -acre parcel for use that is incompatible with the surrounding area. She stated that she believes 7 that a court would find that illegal spot zoning. Munkittrick stressed that decisions made by this Committee create precedence for future zoning decisions. How will your decision be used in the future. If this is rezoned to commercial, in the future someone in that area could ask for the same expansion of commercial use. Homes in that area would be clearly burdened and incompatible with commercial use in the area. She asked Committee members to look at not only this proposal, but what you are saying about appropriateness of commercial use in that area. It would not comply with the Town comprehensive plan. Referring to the map showing that intersection appropriate for commercial, the Town of Kinnickinnic tried to provide an educational experience and to save money in preparation of the comprehensive plan by hiring interns from UW -River Falls. They provided useful information. The entire plan commission decided to not include those materials in its comprehensive plan and specifically decided to not include those maps because they were not consistent with the rest of the plan in the years since the interns did their work. The interns did their work at the very beginning of the process. The plan commission took charge of the process and much of what the plan commission decided was not the same as what the interns had proposed. There is much in the comprehensive plan regarding restricting commercial zoning, not wanting industrial zoning. This use would be inconsistent with the comprehensive plan, the reason the Town board recommended denial. The plan applies now. It is not 1985. The current documents must be used today regarding land use and enforcement. If the property is rezoned to commercial we don't know what will happen there. The County zoning ordinance doesn't list the variety of uses. It is surrounded by agricultural and residential property those uses will collide and be contradictive to the whole purpose of zoning. She noted that there is use for those large buildings. They could be used for agricultural use. She stressed that the Committee look at the County zoning ordinance that states that non - retail commercial use is not allowed. Norman Kirchner, 307 County Road SS, is an adjacent landowner and owns property 50 feet from the land being requested to rezone. He has owned his property since 1983. There was no commercial zoning in that area at that time. He stated that this is an issue of fairness. We need to be fair to the Bettendorfs but those who live in the neighborhood understood that this would revert to ag- residential. He asked that the Committee be fair to the neighbors as well. This zoning request is for the purpose of resale. The neighbors know what the area is like with the current business with trucks up and down County Road SS all hours in the night. Drivers did not take the shortest routes to the highway. There has been damage to driveways. Kirchner stated that he knows what it can be like if carte blanche is given for commercial zoning. Dan Krumweide, 933 Chapman Drive, spoke on behalf of three families living at the intersection of Chapman Drive and County Road SS which is the main egress to and from the site. He provided letters that describe the families' experiences which parallel Mr. Kirchner's history with the site. All these neighbors have lived there since 1997 or before. He also provided an attorney's letter from the Bakke Norman law firm, the firm that Town of Warren uses for zoning issues. The letter has remarks regarding spot zoning that underscores what Munkittrick has stated and highlights the statement that this appears to be illegal spot zoning. The law in Wisconsin is unequivocal. Zoning must be for the purpose of promoting health, safety, and the general welfare of the community. Property may not be rezoned simply for the benefit of one single property owner. If it were granted in any condition in all these years he has not been able to understand how they can justify the zoning this parcel where they zoned it either at the Town level or at the County level. He cannot find one law that supports this. This was done for one company's personal profit and at the detriment of the neighborhood. It is clearly spot zoning. In its record of violation, in its record of fines that they wanted to impose, in its record in the courts where it was finally overturned, he doesn't see how it is squared with anything that is written in law. If you make special exceptions for one person, if you zone commercial or industrial, this property can be resold to anyone for commercial or industrial use. No one would control it. It has not been controlled in the past with the noise level and traffic. No one has imposed fines, no one has enforced regulations. If it is rezoned it would be property that could be sold for one man's profit, subjecting the neighbors to whatever anyone does there. It has a history of Waste Management using it with their trucks. As a citizen of the Town, the County and the State he asked how can you violate the laws and shape them for one person's advantage. 8 Dan Weiser, 258 County Road SS, is a direct neighbor ' / mile south of the Bettendorf property. Up until recently he was compassionate for the Bettendorfs. He learned that the reason they want a permit for commercial zoning is for the property to be sold. His concern is who they might sell it to. He is the neighbor most affected by this. Weiser stated that he and other neighbors have lived with this business operating for years with Madison Freight trucks coming through all hours of the morning. Waste Management is dumping trash in yards. The people who are here who are in favor of the rezoning are not the ones who have been affected by this business. He was not bitter before this evening. It is just not right. Weiser has a lawn mower repair business, not a million dollar business. He stated that Bettendorf has more assets in one of his farm tractors than he does in his entire estate. They come here as poor people with a home business. We are not putting them out of business. They have a current excavating business. A Bettendorf truck has not gone by his house in quite some time and they may not be operating a trucking company at this time. The amount of sand taken out of the property is substantial. Weiser stated that he now is bitter about this. Weiser has two young children and is concerned about safety. He noted that John Bettendorf has policed his drivers very well. If he could have some guarantee that John Bettendorf would go back to trucking with John Bettendorf control, he would not be here tonight. The one reason for the commercial zoning request is because he plans to sell the property. If that happens, what kind of business will go in there. Weiser has lived there since 1997. He knew about the Bettendorf trucking at that time but did not realize that Madison Freight, Waste Management and third party trucks were coming in and out of there. He understood that the parcel would revert back to ag- residential. Roger VanBeek, 578 Highway 65, Town of Kinnickinnic Chair, stated that the scars from this operation will last for a long time. There is a long history to this. When he received the rezoning application at the Town hall, he questioned what to do, how to handle this. He talked to Dave Fodroczi and Kevin Grabau to learn the background, trying to figure out how we got from 1985 to today. Everything with the Bettendorf property seemed to be retroactive. Original zoning was granted with exceptions. In 1990 they wanted to build an ag building that ended up a commercial truck transfer building, which was different than what the Town anticipated. The Town determined a special exception permit was needed. A special exception hearing was held with approval recommended by the Town with conditions. Those conditions were spelled out by the Town attorney. The next month the Town board stated that those conditions weren't spelled out and granted the permit without conditions. It was a special exception hearing. He questioned if it is the same board that makes decisions for both special exceptions and rezonings. He also questioned if at a special exception hearing, would this Committee go back and make decisions to reverse zoning. That was done in 1990. At a special exception hearing the Committee took away the restrictions of the zoning. That is the reason Bettendorf moved forward and built all the buildings and infrastructure. They built those buildings fully aware that those conditions were on the zoning but thought those exceptions went away at a special exception hearing. That would have been an illegal process. He asked if this is treated as a new application. The main concern for the Town now is the rights of its citizens, public safety and if it fits the neighborhood. With the rules in place in 2008, do we want to zone the property commercial knowing that it is transferable and we can't control what goes in there. The Bettendorfs were told that the Town is working through that process trying to determine how to grow commercially, but that has not happened yet. In working on the comprehensive plan there were some suggested locations for commercial development. The consensus of the plan committee is that this is not the proper area for commercial businesses. This business fits the parameter of industrial rather than commercial. Referring to the argument that several other truck transfer businesses in St. Croix County are within a commercial zone, those operations would likely not get that permit under the new County plan. He asked the Committee if it would grant a truck transfer station of that magnitude with a commercial atmosphere. VanBeek stated that we can't look at what was done in 1990 or 1992 with other businesses. Look at what to do today with the current plan. Lars Loberg, son of Bob Loberg, Attorney for the Town of Kinnickinnic, has looked at this trying to determine, in cases like this, what matters and what doesn't. He stated that the fairness factor doesn't matter. 9 The court of appeals has already looked at the fairness factor. The applicants' attorney was there and fairness would have been one of the main arguments because it is the only argument that can be made in support. He stated that he reviewed five memos, one his own. The four others, one from an attorney with no connection to the Town or County, one from attorney Bob Loberg, one by a member of the Town and one by the applicants' attorney. It was four to one, looking at the ordinances and statutes of the State of Wisconsin, all four found, that without a doubt, that whether it was contract zoning or spot zoning, or a development agreement, every one of them failed under legal muster. So how much emphasis can be put on the fairness factor. If we go with the fairness factor we will be back to where we were in 1985 because someone will challenge it and it will go back into court. It cannot be approved under statutes and the ordinance. He stated that the application for rezoning should be denied. Gordon Awsumb questioned if Lars Loberg is acting as legal counsel for the Town. Loberg replied that he was speaking as a law clerk. Awsumb requested that the Committee not consider Mr. Loberg's opinion since it is not a legal opinion of the Town. Ruetz stated that we take testimony as for what it's worth. With no one else wishing to speak Chair Ruetz closed the public hearing. Motion by Ruetz, 2 " by Norton - Bauman, to table the decision until the next Planning and Zoning Committee meeting on October 14. Hermsen asked if this decision is tabled, will the body hear the Committee's discussion. He thanked all those in attendance. He drove by the location today. He wants to consider both parties. In reviewing the history there is violation of zoning. He agreed with the motion to table the decision. There is much to study and consider. Additional legal help is needed. Sather stated that the 1985, 1990 and 1995 applications are void. This is a new application. We need to go by today's rules. We also need to keep in mind that the Town of Kinnickinnic does not recommend approval. Regarding the statement that many farms have little sand pits, Sather stated that the Bettendorfs have a big hole. Norton Bauman emphasized the need for outside legal counsel before the Committee can vote. Committee members need time to discuss what the options are — legally and fairly. Motion carried. The Committee will discuss this further and look at options at the October 14 meeting. ARDC Remodeling Report - Norton- Bauman stated that she serves on the ADRC Committee. That Committee has discussed remodeling in the ADRC suite and possibly putting a door from the ADRC unit to the conference room next to the Planning and Zoning Suite. Chair Ruetz adjourned the meeting at 9:45 p.m. i y Olson, kecorder Lorin Sather, Secretary 09 -24 -08 10