St. Croix County Board votes against appealing judge’s decision granting a rezone for Hideaway LLC
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By LeAnn R. Ralph
HUDSON — Think of it in terms of a double negative.
The St. Croix County Board will not be seeking an appeal which could reverse a judge’s decision that reversed the county board’s decision in June to deny a rezone request for Hideaway LLC to operate in Commercial 3 district along the Apple River in the Town of Somerset.
In other words, the application for a rezone from Mike Kappers and Hideaway LLC has been approved.
On a vote of 11 “no” to four “yes” with one abstention, the St. Croix County Board at the December 5 meeting failed to approve a motion that would have asked an appeals court to review the county board’s decision on June 6, 2023, that ended up denying a rezone application from Mike Kappers and Hideaway LLC to rezone 4.7 acres in the Town of Somerset from Commercial 1 to Commercial 3.
The rezone was denied at the June meeting not because the majority of the county board voted against a rezone, because the majority of the county board did approve the rezone, but because not enough members of the county board voted in favor of a rezone.
The St. Croix County Board at the June meeting voted 11 “yes” to 6 “no” to grant Kappers’ request for a rezone, but the board “did not approve it enough,” said Ken Witt, county administrator.
Approval of the rezone would have required a three-quarters supermajority vote in favor of the rezone because adjoining property owners had filed a petition against the rezone, which changed the number of votes needed to grant a rezone, Witt explained.
Kappers filed for a certiorari review of the county board’s decision in St. Croix County Circuit on July 6, according to background information in the St. Croix County Board’s packet for the December 5 meeting.
Judge Scott J. Nordstrand issued an oral ruling November 29 that reversed the county’s board’s decision and ordered that the application for a rezone be granted.
The judge had three options: affirm the decision of the county board, reverse the county board’s decision or remand the rezone back to the county board for additional action.
No reasons
Judge Nordstrand said that the six county board members who voted “no” on granting the rezone in June did not articulate their reasons for voting “no” well enough, then changed the “no” votes to “yes” votes, and approved the rezone, Witt said.
“We think we would be successful on appeal because the majority of the county board voted in favor of a rezone,” he said.
The question is whether filing the appeal “is the right thing to do” since the majority of the county board did, in fact, vote to approve the rezone, Witt said.
Hideaway LLC/Mike Kappers had originally applied to rezone the entire 41 acre parcel in the Town of Somerset from Residential-1 and Commercial-1 to the Commercial-3 zoning district. After the Town of Somerset reviewed the request, the applicant modified the request to only rezone 4.7 acres from C-1 to C-3.
The Town of Somerset Plan Commission and the Somerset Town Board subsequently recommended approval of the rezone.
Conditional uses
According to a St. Croix County staff report presented at the June 6 county board meeting, Kappers said the rezone was necessary after the St. Croix County Zoning Board of Adjustment (BOA) in the fall of 2022 revoked two of the conditional use permits issued in 1984 and 1991 for existing uses on the property due to non-compliance with conditions set in the permits.
Uses that were allowed under the previous conditional use permits included an Apple River tubing operation, two outdoor open air concerts per year, a food concession/eatery and a campground.
Commercial 3 zoning would add to the list of uses for the property, some that are automatically permitted by the zoning designation and some that would require conditional use permits or special exception permits.
For example, C3 zoning would allow campgrounds, outdoor entertainment, a bar or a tavern, a restaurant and lodging, such as a motel, said Jason Kjeseth, director of St. Croix Community Development.
A bar or a tavern is a permitted use in Commercial 3 but is not allowed at all in Commercial 1, noted Heather Amos, St. Croix County corporation counsel.
Legislative
Several county board members said they were not opposed to the rezone but that they were opposed to a circuit court judge making a decision in place of the St. Croix County Board.
Scott Counter, county board supervisor from New Richmond, said he was not against Judge Nordstrand’s decision, which granted the rezone, but the issue is that a legislative decision was being decided by the judicial branch of county government on behalf of the county board.
If the judge had remanded the issue back to the county board for further consideration, Counter said he could have understood that decision.
Counter said he did not agree with the judge’s decision “to point blank change the outcome of the legislative branch” and that it seemed “over the top.”
Except, of course, that the judge’s decision did not reverse the county board’s decision since a majority of the county board had approved the rezone, but since a three-quarters approval was needed because of the petition by the adjoining landowners, the motion to approve failed.
Amos said that Counter’s argument would be the basis for the appeal if the county board decided the issue should go forward for an appeal.
A rezone is a change in the ordinance and is at the sole discretion of the legislative body, and the court should give deference to the decision of the St. Croix County Board, Amos said.
Judge’s decision
Paul Berning, county board supervisor from Hudson, asked for a copy of the judge’s decision so county board members could read it.
Berning said he wanted to read the judge’s decision rather than just the synopsis of the decision included in the county board packet.
“It is not right to vote on synopsis when we do not know what the judge said,” he said.
The St. Croix County Board recessed for about 10 minutes to allow copies to be made of the judge’s decision and to give county board members time to read the decision.
Articulated reasons
Several county board members also objected to the judge stating that those board members who had voted “no” on the request for a rezone in June had not articulated their reasons for voting no.
Amos agreed.
There is nothing in state law or in St. Croix County ordinances that requires board members to articulate their reasons for voting for or against a motion, she said.
The judge relied on arguments from Kappers’ attorney, but Kappers should have been able to argue before the St. Croix County Board, Amos said.
The Board of Adjustment is a quasi-judicial body that requires evidence and findings, which are not required for a decision by the St. Croix County Board, she said.
Some of the “no” votes at the June 6 meeting were prompted by concerns about the protest petitions filed by the adjacent property owners because of their concerns about the rezone, Amos said.
The statute allowing protest petitions to change the number of votes required to approve a rezone has since been repealed, and there is now no ability for the neighbors to require a supermajority approval of a rezone, she said.
Appeal
The Court of Appeals would not be reviewing Judge Nordstrand’s decision, but rather, would be reviewing the St. Croix County Board’s June 6 original decision on the rezone, Amos said.
The appeal must be filed within 30 days of the circuit court judge’s decision, and then a briefing schedule would be set. The appeal would likely go to a three-judge panel, and the decision from the Court of Appeals would probably take a year, she said.
Amos also noted that if the township disapproves a rezone, by St. Croix County’s ordinances, the St. Croix County Board must also disapprove the rezone.
County board supervisors Lisa Lind (Hudson) and Daniel Hanson (New Richmond) were absent from the meeting.
County board supervisor Bob Feidler (Hudson) attended the meeting by Zoom.
The St. Croix County Board’s vote not to seek an appeal means that the rezone applied for by Kappers and Hideaway LLC is approved.
