Due to the efforts of Gimbel, Reilly, Guerin & Brown, LLP partner Ray Dall’Osto, a circuit judge on April 29th vacated the decision of the City of Elkhorn Common Council, which last year denied a conditional use permit (CUP) for New Beginnings Association for Prevention of Family Violence to open a women’s and children’s shelter near the old courthouse square in Elkhorn. There is currently no such shelter for victims of family violence in Walworth County. Conditional use permits (CUPs) allow a zoning board to approve a land use that may be compatible in the zoning district in which it is proposed, but that is not permitted as a matter of right. A CUP is different than a variance. New Beginnings’ proposal, which would repurpose a former Aurora Medical Clinic building being donated for this purpose, was carefully put together and met the concerns of city planners and officials. However, the Common Council, in a 4-2 vote, summarily denied their application for a CUP, despite it being supported by hundreds of citizens and law enforcement officials.

Following the denial, New Beginnings requested the involvement of Attorney Dall’Osto. A detailed petition for certiorari review of the denial of the CUP was prepared and filed, and extensive briefs were subsequently submitted to the court following the filing of the formal record by the City. Common law certiorari review of the decision of a government body or agency is generally limited to: (1) whether the municipality kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence in the record was such that it might reasonably make the order or determination. The scope of certiorari review may be enlarged by statute, and in fact, a recent statute, 2017 Wis. Act 67, amended sec. 62.23(7)(de). Act 67 changed the CUP law to provide that a permit should be issued where the applicant meets, or agrees to meet, standards specified in a local ordinance. The language of Act 67 requires that there be substantial evidence in the record to support the denial of a CUP, in order for the denial to be upheld on certiorari appeal. Mere personal preference or speculation on the part of the person(s) opposing the CUP do not constitute the necessary substantial evidence.

After hearing oral argument on April 29, 2020, Walworth County Circuit Judge Daniel Johnson agreed with New Beginnings’ arguments, and vacated the Common Council’s decision denying the CUP. He remanded the case back to the Common Council. While it’s not clear when the Council will review the matter again, Dall’Osto said that New Beginnings is willing to work with the City of Elkhorn, provide additional information if requested, in order to try to find a way forward to make this happen. The need to address the problem of family violence in Walworth County and protect and aid the victims of family violence, who are largely women and their children, is even greater now in these pandemic times.

Sources:

Navigating the Family Violence Prevention and Services Program (U.S. DHSS) https://www.acf.hhs.gov/sites/default/files/fysb/fvpsa_admin_guide_20121119_0.pdf

Wisconsin Legislative Council memo on Act 67 https://docs.legis.wisconsin.gov/2017/related/lcactmemo/act067

M. Parenteau, Legislature Enacts New Standards for Conditional Use Permits https://www.wisbar.org/NewsPublications/InsideTrack/Pages/Article.aspx?Volume=10&Issue=5&ArticleID=26234

Lake Geneva News https://www.lakegenevanews.net/news/local/judge-gives-domestic-violence-shelter-another-chance-in-elkhorn/article_9d530f9e-8e42-51ce-9287-f3022492ddc4.html

Janesville Gazette https://www.gazettextra.com/news/crime/judge-rules-elkhorn-must-reconsider-domestic-violence-shelter-project/article_03dfc1b1-8357-57a4-89ed-d612bbf912c8.html