Continental Grafton should be allowed to be build drive-through restaurant, judge rules in appeals case
Continental Grafton has scored a victory in its fight with the Village of Grafton to build a drive-through McDonald’s restaurant on the community’s east side.
In a decision handed down last week, retired Judge Neal Nettesheim ruled that the village’s Plan Commission erred in rescinding approval of a conditional-use permit for the project it previously granted.
The permit approval, Nettesheim wrote, “was final, binding and not subject to later reconsideration and rescission by the Plan Commission.”
Nettesheim, a former presiding judge of the Wisconsin Court of Appeals, was called in to preside over an Aug. 27 hearing on Continental’s appeal of the commission’s decision. The developer and village agreed to have Nettesheim hear the case as an arbitrator after Ozaukee County Circuit judges and the village’s Board of Appeals declined to do so.
Continental represents Kilian Management Services, which wants to build a franchise-operated restaurant off Highway 60 on the last vacant parcel in the Grafton Commons shopping center. However, the village has denied a conditional-use permit for the project, citing a long-standing ordinance that prohibits drive-through restaurants in the C-4 freeway interchange business district.
In March, the Plan Commission approved a site plan and permit request from Continental. At that time, village officials said the decision was contingent on the Village Board approving a zoning change, which the board subsequently failed to do.
Continental has taken several legal steps in response to the village’s refusal to allow the restaurant to be built. These include filing appeals and a lawsuit that asked a Circuit Court judge to overturn the village’s decision and issue a building permit for the project.
In May, the Plan Commission agreed to reconsider Continental’s request for a permit after it was determined that the proposed restaurant site is part of the Grafton Commons development and had been mistakenly linked to the C-4 district.
The commission then rejected the application after village officials determined all construction in the Grafton Commons had to be completed within three years after zoning for the shopping center was approved in April 2006.
However, in his ruling, Nettesheim upheld the commission’s March approval of the permit.
“There is no evidence showing that the C-4 mistake prompted or influenced the Plan Commission’s decision to grant Continental’s CUP (conditional-use permit) for the McDonald’s project,” Nettesheim stated.
“I agree with Continental that the C-4 zoning was an irrelevant factor in the Plan Commission’s decision approving the Continental’s CUP application.”
Nettesheim noted that the village staff, including Planning Director Jessica Wolff, supported Continental’s request at the commission’s March meeting.
The commission’s approval of the permit “was final and binding, and the village was barred from reconsidering the matter” in May, Nettesheim stated.
Added Nettesheim: “I find that the Plan Commission’s later rescission decision, based upon the same prior evidence, was arbitrary, oppressive and unreasonable.”
The village has 30 days to respond to Nettesheim’s ruling, including a possible appeal.
Village Administrator Darrell Hofland said the Village Board will discuss the ruling in closed session at its Monday, Oct. 5, meeting. He declined further comment except to say that “in interim period, the village is in communication with Continental Grafton.”
Continental representatives could not be reached for comment.