MADELINE ISLAND NEWS AND INFORMATION

ATTORNEY FAUERBACH'S OPINIONS ON THE RYDER ZONING MAP CHANGE

As we reported earlier in the month, at a recent Town Board meeting, a Town Plan Commission  recommendation was put to a vote concerning a zoning map change involving two parcels of land owned by Jim and Liz Ryder.  The change requested was to remedy a setback violation of buildings they had built too close to the property lines of these parcels. 

According to various documents, it appears that Jim Ryder had obtained the permits for theses building in 1998 and 1999, apparently neglecting to show the property line of between these two parcels. 

However, recently it was discovered that the parcel was actually two parcels and that his buildings he had constructed were now in violation of the setbacks in the W1 zoning district.  It is still not certain exactly what happened in 1999, however Ryder now has to take some action to remedy the situation.

In September, Ryder submitted a request for a  Certified Survey Map (C.S.M.) change to the Town Plan Commission, asking to change the property lines of these two parcels in such a way as to create three parcels; a solution that would have rectified his problem.  The Town Plan Commission voted unanimously (with Mike Starck abstaining) approved his request and passed their recommendation on to the Town Board.   However, when the recommendation came to a vote at their October 28th meeting, his request was denied unanimously 5-0 by the Board. 

This did not stop Ryder from trying another angle to rectify his setback violation problem.  In September, Ryder applied for a zoning map change asking that the zone these parcels are located in be changed from W1 to S1; another solution that would remedy his problem.

At their September 17th meeting, the Town Plan Commission voted unanimously to allow this change and once again passed their recommendation on to the Town Board.  (One of the Commissions was Michael Childers, a business partner with Jim Ryder at Island Shores Realty, and Lois Carlson, wife of Todd Carlson, another business partner of both Ryder and Childers. Childers and Carlson later resigned from the Commission.)

During this time, due to some of the issues involved in this case, someone in town government very wisely sought the advice of an attorney, as many of these of these issues were legally very complex. 

A reader obtained a copy of this letter and emailed it to us.  What we found we wanted to share with you because unlike some of those currently holding office, we think you have a right to know EVERYTHING that is going on.

These opinions are from Michael Fauerbach', who is regularly consulted by the town of La Pointe on various issues including zoning.

Click here to read Fauerbach's letter.

Fauerbach's letter addresses several issues raised concerning this change request including: errors in the notice of the public hearing, the accusation of "spot" zoning, the letter from Mike Starck  in support of Ryders submitted prior to the public hearing, and inaccuracies in ownership of these parcels on two previous applications for land use and building permits by Ryder in 1998 and 1999.

This letter arrived at Town Hall on January 21, via fax, the same day as the public hearing and was distributed to members of both the TPC and the Town Board. However, at the Town Plan Commission meeting immediately following this public hearing, Carl Broberg, TPC Chair put the issue to a vote and the TPC voted to to recommend Ryder's zoning map change request. 

Broberg has been accused of not maintaining impartiality on this matter as a motion he presented at the meeting immediately after the hearing appears to have been prepared in advance of the hearing.  We have reprinted the motion below from the approved minutes of the meeting:

Clearly Broberg did not write this in the short time frame (15 minutes) between these meetings. One would think that Broberg would have waited until the next meeting to present such a lengthy motion to at least avoid the appearance of bias. Actions such as this only add fuel to the fire of those accusing Broberg being unfit to lead the Town Plan Commission. 

However, after reading Fauerbach's letter, one wonders how the Town Plan Commission could even make this recommendation in the first place. 

In his letter, he mentions something called "spot" zoning.  Spot zoning is making changes in zoning ordinances to accommodate individual land owners.  According to his letter, Faurerbach says that spot zoning is not illegal, per say,  when there is a direct benefit to the public, consistent with the purposes of zoning and other factors are considered.  He also pointed out examples where the courts have upheld some spot zoning decisions when the decision was made to foster various forms of economic development to small businesses. But he cites examples where Wisconsin courts have overturned decisions allowing spot zoning when no benefit to the public could be shown.  

Three of the six sitting Town Plan Commissions voted for this recommendation:  Broberg, Suellen Souchek, and Ron Maddich.   Greg Thury voted against it and Ron Harrold was absent.  Mike Starck abstained.  I am not sure whether or not the Commissioners read Fauerbach's letter before voting, but I think that voting on the matter at a meeting immediately  after the public hearing was inappropriate. 

What is more surprising is that even after receiving copies of Fauerbach's letter, two of the Town Board of Supervisors still voted in favor of changing the zoning map for Ryder's parcels:  Ric Gillman and Jim Patterson, liaison to the TPC.

One might draw the conclusion that these two Supervisors may not have read Fauerbach's letter, didn't understand the legal ramifications of  voting for a "spot zoning" recommendation,  or simply ignored his advice. 

Looking at their reasons for voting "yes", neither Supervisor mentions any benefit to the public, according the approved minutes of the meeting when the vote was taken. 

Ric Gillman moves – Jim Patterson seconds – to approve Recommendation for Approval by the TPC re: Petition for a Zoning Map Change by Jim Ryder and Elizabeth Ryder – motion fails.  3 nay and two aye.

Beth Fischlowitz: nay.  Likes the applicants but there was too much confusion.  Has a problem with spot zoning and feels that that the original application did not represent the lots correctly.

Greg Nelson:  Nay.  Town was presented with a map representing one parcel originally, granted a building permit, and now is being asked to remedy that misrepresentation with a map change.

Ric Gillman: Yes.  Mr. Ryder has done  a lot to remedy the situation, the town gave the original permit without the Ryders having completed the project.  He is now left with 3 non-conforming lots with no remedy.

Jim Patterson: Yes.  Feels that the town has asked Mr. Ryder to jump through hoops in order to get this change, and that it would fair to approve it.

One could infer that these two supervisors voted for Ryder's change out of pity and not out of any benefit to the public.  Jim Ryder has spent much of the town's time at recent TPC and Town Board meetings trying to remedy a problem he created for himself when he originally misrepresented his property on his permit applications.  His efforts were successful so far as convincing two people on the board that he should be allowed this change due to his recent efforts.  However, Ryder could have remedied this situation by simply joining the two properties as they were represented on his permit application.  This would take care of the setback violations of his building.    However, this seems like a last resort to Ryder; something he may have to do yet.  Or tear down the buildings. 

Or wait until the La Pointe Zoning Ordinance is changed  to allow building on "non-conforming lots"  as suggested by Starck at the October 28th Town Board Meeting.  (One such ordinance was recently presented at the TPC Public Hearing on February 18.  Click here to see the currently proposed ordinance.)

The Town Plan Commission's recommendation, along with Gillman's and Patterson's vote of "yes" for the recommendation, sends a clear message to the community concerning zoning:  "If you are found to be in violation of the zoning ordinance, all you have to do is lobby local government officials to change the ordinance to remedy your violation."

Is this how zoning is supposed to work?

On Madeline Island, it appears so.

Time and again we hear from our local officials that no one ever shows up to town meetings unless they think something is wrong and they want to complain.  To those officials, I submit this:

I believe that those people showing up to complain are complaining for very valid reasons.  Jim Ryder has been allowed to take up hours of time at many of these recent meetings and public hearings.  It is no wonder that people do not want to come and sit through these meetings, let alone sign up to sit on a Commission to deal with situations such as this.  The mere fact that open seats on the TPC went unfilled for weeks is proof enough. This is part of the problem. 

It appears that time and time again, when you, as local government officials, are presented with sound advice, you often fail to follow it.  This gives the appearance that you are "not listening" and more often than not, your bad decisions have ramifications for the town at some later date, sometimes resulting in expensive lawsuits against the town.

At the recent public hearing held by the Town Plan Commission, only two of the five members of the Board of Supervisors were present.  Beth Fischlowitz and Mike Starck, who is also a Town Plan Commissioner.  Greg Nelson, Ric Gillman, and the "liaison" to the TPC, Jim Patterson, did not attend.   YOU are our "leaders" whom we depend on to make decisions in government on our behalf.  Where were YOU for this meeting???

I think when Town Board members stop even giving the appearance that they are interested in what the public has to say, then I believe that there is definitely a problem with our local government.  The remarks by Greg Nelson at the Town Board Meeting of February 24th, 2009 are proof enough that is a Time for Change.

What do you think?

Edward Itor

Madeline Island News

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