Zoning-Bias

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WI Court of Appeals – District III

Case Name: Sojenhomer LLC v. Village of Egg Harbor

Case No.: 2022AP001991

Officials: Stark, P.J.

Focus: Zoning-Bias

In this zoning case, Sojenhomer LLC and 7783 STH 42 LLC (hereinafter, Sojenhomer) challenge the Village of Egg Harbor Plan Commission’s denial of a conditional use permit (CUP). The Plan Commission denied the CUP on the basis that the CUP application’s proposal would exacerbate existing traffic safety and congestion problems and therefore did not promote the public safety and welfare of the Village’s residents.

On certiorari review, the circuit court concluded that the Plan Commission did not proceed according to law when it denied Sojenhomer’s CUP application. Specifically, the court found that Sojenhomer’s right to a fair and impartial review of its CUP application had been violated by the involvement of two members of the Plan Commission who had demonstrated prior bias. It further determined that the due process violation could not be cured on remand. The court therefore reversed the Village’s decision and directed that the CUP be granted unconditionally.

On appeal, the Village does not contest that the bias of two of the Plan Commission members affected its decision or that Sojenhomer’s procedural due process rights were violated. Instead, the Village argues that the circuit court erroneously exercised its discretion by ordering that the CUP be granted unconditionally as a remedy, rather than choosing from a variety of alternative remand options. Because the appeals court concludes that the court reasonably exercised its discretion under the facts in this case by remedying the violation of Sojenhomer’s due process rights through the unconditional grant of the CUP, the appeals court affirms.

Affirmed

Decided 12/12/23

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