Ryan Richeson v. Town of Hortonia

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
September 16, 2025
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2024AP700 Cir. Ct. No. 2022CV538

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT III

RYAN RICHESON AND JRSCE HOLDINGS, LLC,

PLAINTIFFS-APPELLANTS,

V.

TOWN OF HORTONIA,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Outagamie County:
MARK G. SCHROEDER, Judge. Affirmed.

Before Stark, P.J., Hruz, and Gill, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Ryan Richeson and JRSCE Holdings, LLC,
(collectively, Richeson) appeal from an order granting summary judgment in favor
No. 2024AP700

of the Town of Hortonia and denying Richeson’s request for certiorari relief from
the Town’s denial of his rezoning and conditional use permit (CUP) applications.
Because we conclude the Town did not err by denying the applications, we affirm
the circuit court’s order upholding the Town’s decisions.

BACKGROUND

¶2 Richeson purchased property located on County Road M in the
Town in 2019. The property is a split-zoned property, wherein the northern
portion of the property, which abuts County Road M, is zoned C-1 Commercial,
and the southern portion is zoned R-1 Residential. See TOWN OF HORTONIA, WIS.,
CHAPTER 17: ZONING REGULATIONS § 17.3.01 (Oct. 28, 2020).1 The R-1
Residential portion of the property is contiguous with six other residential-zoned
parcels. When Richeson purchased the property, he was aware that it was
split-zoned. Nevertheless, and based on the alleged assurances from Town
representatives that the property could be rezoned commercial because “it’s not in
the interest of the Town to have multiple zoning classifications on a single parcel,”
Richeson purchased the property and began operating his landscaping business on
the entirety of the property.

¶3 In 2020, Richeson contacted the Town to discuss establishing a
“commercial incubator”2 on the property alongside his landscaping business.

1
All references to the Zoning Regulations in this decision are to the October 28, 2020
amendment.
2
A commercial incubator is defined as

(continued)

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No. 2024AP700

Richeson’s plan was “[t]o construct and operate 47 incubator business spaces in 3
different sizes of buildings,” which would “be leased out to tenants.” A
commercial incubator is not allowed in a R-1 Residential district, but it is
allowable in the C-1 Commercial district as a conditional use, requiring issuance
of a CUP. See ZONING REGULATIONS §§ 17.3.07(B)-(D), 17.3.10(D)(6).
Accordingly, in order to bring his plan to fruition, Richeson required three
approvals from the Town: (1) rezoning of the residential portion of his property to
C-1 Commercial; (2) a CUP, which was dependent upon successful rezoning; and
(3) a site plan, which the Town requires for all new structures in certain zoning
districts and which imposes general design requirements to promote compatible
development, stabilize property values, and prevent depreciation.

¶4 The rezoning and CUP applications were first discussed at the
Town’s plan commission meeting on April 20, 2022. During the meeting,
Richeson presented his applications, and the plan commission heard public
comments from members of the community, including two letters read into the
record. The comments addressed the impact of increased commercial operations
on the nearby residential properties, the impact on the neighborhood atmosphere,
the possible view obstruction and other aesthetic issues, noise and light pollution,

a public or private facility or structure designed to cultivate and
accelerate the growth of entrepreneurial endeavors by providing
an array of business, medical, technology, or research support
resources and services that may include flexible physical space,
access to capital, common services, and computer networking
connections, that may be the Principal Use or Structure or
accessory to the Principal Use or Structure, the uses of which are
compliant with the C-l zoning district.

ZONING REGULATIONS § 17.15.01(B)(62).

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No. 2024AP700

increased traffic to the property, the ability to provide emergency services to the
property, and the impact on property values.

¶5 Another topic of discussion was the fact that the property does not
have its own access to a road. Instead, the property has an access easement. The
owner of the property on which the easement resides attended the hearing and
stated that the easement was meant as a driveway and was not intended for the
volume of use that Richeson’s plan would require. Following these comments,
Richeson and his attorney were given an opportunity to respond before the plan
commission began its discussion and deliberations.

¶6 During its deliberations, the plan commission had questions about
the dual zoning on the property and the “consistency” requirement for rezoning
related to the Town’s comprehensive plan. Eventually, the plan commission
requested that the Town’s zoning administrator draft a report regarding how the
consistency requirement would apply to the proposed rezoning request. The plan
commission thereafter adjourned the meeting.

¶7 The zoning administrator’s staff report concluded that either
approval or denial would be consistent with the Town’s comprehensive plan.3
Specifically, the report concluded that the proposed rezoning would be
inconsistent with the Primary Future Residential Development land use
classification applicable to the property, but it would be “potentially consistent”
with the Highway Commercial Overlay (HCO) land use classification that was

3
See TOWN OF HORTONIA COMPREHENSIVE PLAN 2036 (2015 Update),
https://www.townofhortonia.org/_files/ugd/de5d9e_b84ee3f6a83e4706b5a3f28093c94413.pdf

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No. 2024AP700

also applicable to the property. As a result, the report recommended either
approval or denial of the rezoning request.

¶8 The plan commission met again on May 5, 2022. During that
meeting, the zoning administrator summarized his report, and the plan commission
made some comments on the record. Plan commission member Craig Cwiklowski
provided the majority of the discussion, and the other members noted their
agreement with his thoughts. Overall, the plan commission determined that
rezoning was not consistent with the comprehensive plan and voted unanimously
to recommend denying Richeson’s rezoning and CUP applications.

¶9 Thereafter, the Town of Hortonia Board (the Board) met on May 17,
2022, to review the plan commission’s recommendation and take a final vote on
Richeson’s applications. The minutes of that meeting noted that “[a]ll three Town
Board members attended both of those [plan commission] meetings, heard the
comments, saw the exhibits, and listened to the [p]lan [c]ommission’s decision.”
The Board unanimously voted to deny the rezoning of Richeson’s property, and as
a result of that denial, it unanimously voted to deny the CUP as well.4

¶10 Richeson commenced a certiorari action in the circuit court, seeking
review of the Town’s decisions.5 The Town counterclaimed against JRSCE only,
alleging that it was operating its landscaping business in violation of the Town’s

4
Richeson appealed the Board’s decisions to the Town’s Zoning Board of Appeals
(BOA). The BOA determined that it did not have jurisdiction to decide the appeal. The BOA’s
decision was not further appealed and is not part of this appeal.
5
Going forward, we will refer collectively to the plan commission and the Board as “the
Town.”

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No. 2024AP700

Zoning Regulations “because landscaping businesses are not an allowable use in
the R-1 District.”

¶11 The parties filed cross-motions for summary judgment. The circuit
court held a nonevidentiary hearing on the motions and issued an oral ruling,
which was later memorialized by written order. As relevant to this appeal, the
court granted the Town’s motion for summary judgment on the certiorari claim
and affirmed the Town’s decisions to deny Richeson’s rezoning and CUP
applications.6 Richeson appeals.7

DISCUSSION

¶12 On certiorari review, we test the validity of a decision rendered by a
municipality. See Ottman v. Town of Primrose, 2011 WI 18, ¶34, 332 Wis. 2d 3,
796 N.W.2d 411. We therefore review the Town’s decision, not that of the circuit
court. See Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50,
¶42, 362 Wis. 2d 290, 865 N.W.2d 162. We presume that the Town’s decision is
valid and correct, see Ottman, 332 Wis. 2d 3, ¶48, but the Town “must apply the
appropriate legal standards and adequately express the reasons for its decision on

6
The circuit court denied summary judgment on the Town’s counterclaim. That claim is
still pending before the circuit court.
7
This court has an independent duty to determine whether we have jurisdiction over an
appeal. See Carla B. v. Timothy N., 228 Wis. 2d 695, 698, 598 N.W.2d 924 (Ct. App. 1999). An
appeal as of right can only be taken from a final judgment or order that “disposes of the entire
matter in litigation as to one or more of the parties.” WIS. STAT. § 808.03(1) (2023-24). After
Richeson filed his notice of appeal, we questioned our jurisdiction in this case because the
Town’s counterclaim was still pending, and we ordered the parties to submit jurisdiction
memoranda. The parties filed a joint memorandum, asserting that because the Town did not file a
counterclaim against Richeson, the circuit court’s order was final as to him. Based on the parties’
memorandum, we determined that we have jurisdiction over Richeson’s appeal. We also
determined that the criteria for an interlocutory appeal had been satisfied as to JRSCE’s appeal,
and we allowed JRSCE’s appeal to continue as a permissive appeal. See § 808.03(2) (2023-24).

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No. 2024AP700

the record,” see Driehaus v. Walworth County, 2009 WI App 63, ¶13, 317
Wis. 2d 734, 767 N.W.2d 343. It is Richeson’s burden to overcome that
presumption. See Ottman, 332 Wis. 2d 3, ¶50. The Town’s findings “may not be
disturbed if any reasonable view of the evidence sustains them.” See Snyder v.
Waukesha Ctny. Zoning Bd. of Adjustment, 74 Wis. 2d 468, 476, 247 N.W.2d 98
(1976).

¶13 Our review is de novo. Propp v. Sauk Cnty. Bd. of Adjustment,
2010 WI App 25, ¶9, 323 Wis. 2d 495, 779 N.W.2d 705. However, that review is
limited to whether the Town: (1) “kept within its jurisdiction”; (2) “proceeded on a
correct theory of law”; (3) acted in an “arbitrary, oppressive, or unreasonable”
manner that “represented its will and not its judgment”; and (4) could reasonably
have reached its decision based on the evidence before it. See Ottman, 332
Wis. 2d 3, ¶35.

¶14 On appeal, Richeson argues that the Town’s decisions to deny his
rezoning and CUP applications did not follow correct theories of law, were
arbitrary and unreasonable, and “could not reasonably have been reached based on
the lack of evidence before the [Town].” For the reasons that follow, we reject all
of Richeson’s arguments and affirm the Town’s decisions.

I. Correct theory of law

¶15 Richeson argues that the Town’s decisions “should be reversed
because the Town inexplicably proceeded on several incorrect theories of law.”
First, he contends that the Town erred because the Zoning Regulations do not
allow for multiple zoning classifications. Richeson alleges that the property’s
“randomly drawn,” “arbitrary” dual zone dividing line “does not comply with the
Zoning [Regulations] as a matter of law,” and he argues that the Town “proceeded

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No. 2024AP700

[on] an incorrect theory of law … [by] denying [Richeson’s] request to [r]ezone
the [p]roperty to the single zoning district of C-1 Commercial.”

¶16 According to Richeson, § 17.3.03(A) of the Zoning Regulations
expressly provides that “the boundaries of a Zoning District must follow the lot or
property lines of a parcel.” He asserts that this interpretation is supported by the
statement in the zoning administrator’s staff report that “a parcel should host no
more than one base zoning district and one or more overlays.” See also ZONING
REGULATIONS § 17.15.10(B)(9) (defining “Base Zone” as “[t]he zoning district
underlying a zoning overlay”). Further, he points to § 17.2.03(A) of the Zoning
Regulations, which provides,

All Lots shall abut a public street, except a lot of record
with the Outagamie County Register of Deeds on
October 28, 2020. Such lot may be occupied by any
Permitted or Conditional Use of the Zoning District within
which the lot is located, provided that such proposed use
complies with all other applicable provisions of this
Chapter.

Richeson argues that § 17.2.03(A) “is directly relevant … because it plainly
demonstrates [that] the Zoning [Regulations], as written, require[] lots within the
Town to not be dual zoned.”

¶17 The interpretation of an ordinance is a question of law we review de
novo, Schwegel v. Milwaukee County, 2015 WI 12, ¶18, 360 Wis. 2d 654, 859
N.W.2d 78, and we apply the same principles we use for statutory interpretation,
Stoker v. Milwaukee County, 2014 WI 130, ¶17, 359 Wis. 2d 347, 857 N.W.2d
102. “[S]tatutory interpretation ‘begins with the language of the statute.’” State
ex rel. Kalal v. Circuit Ct. for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110 (citation omitted). “Statutory language is given its common,
ordinary, and accepted meaning,” and we interpret the language “in the context in

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which it is used; not in isolation but as part of a whole; in relation to the language
of surrounding or closely-related statutes; and reasonably, to avoid absurd or
unreasonable results.” Id., ¶¶45-46.

¶18 Based on the plain language of the Zoning Regulations, we conclude
that dual zoning is not explicitly prohibited; thus, the Town did not proceed on an
incorrect theory of law by refusing to grant Richeson’s rezoning request.
Section 17.3 of the Zoning Regulations is titled “Zoning District,” and § 17.3.02,
titled “Establishment of Zoning Map,” states, in pertinent part, that “[t]he location
and boundaries of the districts established shall be as shown on the map entitled
‘Town of Hortonia Zoning Map.’… Amendments to the Zoning Map shall be
approved by the Town Board … and shall promptly be portrayed on the Zoning
Map.” ZONING REGULATIONS § 17.3.02 (emphasis added). In other words, the
zoning map establishes the boundaries of the districts, while the Zoning
Regulations establish the rules for setting the boundaries.

¶19 As the Town identifies, Richeson’s argument fails to address the first
part of § 17.3.03(A) of the Zoning Regulations, which states that “[t]he boundaries
of these Districts are hereby established as shown on the Zoning Map” and further
provides that “the boundaries shown on such map shall be construed to
follow … lot or property lines” “[u]nless otherwise noted on such zoning map.”
(Emphasis added.) Therefore, Richeson’s assertion that the zoning map does not
control because it was “adopted pursuant to the” Zoning Regulations is not
persuasive. Here, the zoning map undisputedly creates a split zoning district on
Richeson’s property and demonstrates an unambiguous intent to designate only the
front portion of the lot as commercial. Richeson has not identified any language
in the Zoning Regulations that explicitly states that dual zoning is prohibited. The
Town’s zoning administrator’s belief that dual zoning is “problematic” does not

9
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mean that it violates the regulations.8 Further, even if only one zoning designation
could apply under the regulations, there is no requirement that the property be
zoned entirely commercial, as Richeson requests, rather than residential. Thus, the
Town did not proceed on an incorrect theory of law based on the terms of the
Zoning Regulations.

¶20 Second, Richeson argues that the Town proceeded on an “incorrect
theory of law by denying the [r]ezone because it assumed there would be
insufficient access to support a C-1 Commercial property [based on the easement,]
despite the fact that the [p]roperty is already, in part, zoned a C-1 Commercial.”
According to Richeson, during the public hearing, “multiple comments were made
suggesting that the [e]asement could not be used for [c]ommercial uses,” and the
Town “recklessly relied” on these “unsupported statements without ever reviewing
the actual [e]asement.” Richeson states that the easement provides that it is an
“easement for ingress and egress purposes” and that there are no limitations on the
easement related to “the purposes of the ‘ingress and egress’ or volume.”

¶21 We conclude that the Town did not proceed on an incorrect theory of
law based on its discussion of the easement. Initially, we note that we agree with

8
In Richeson’s appellate briefs, he mentions that the zoning administrator “repeatedly
advised that dual zoning is problematic and contrary to good zoning practices.” We note that
while the zoning administrator did state multiple times that his “professional opinion” is “that
dual zoning is problematic,” he also made the following important observations:

So with respect to the dual zoning as eluded to and you heard
me say, from a planning standpoint and from the [z]oning
[a]dministration’s standpoint, I think it’s problematic. That’s not
to say it’s unlawful. You can have dual zoning. There’s nothing
in the State statutes, there’s nothing in the Town code that
prohibits it. I think it’s a mistake. I convey that to you as a
[p]lanning [c]ommission. But that doesn’t mean that you can’t
allow it.

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No. 2024AP700

the Town that the impact of the existing easement was an issue of fact for the
Town to consider within its rezoning and CUP decisions; it was not a theory of
law that controlled its decision. While an easement grants specific legal rights, we
agree with the Town that its decisions on Richeson’s applications were not based
on the existence or nonexistence of those rights. The Town merely considered
that the property had an easement rather than direct access.

¶22 Regardless, even if we assume, without deciding, that an
interpretation of the permissible use of the easement somehow created an issue of
law, we conclude that the Town properly considered only the existence of the
easement in its decision. First, we disagree with Richeson’s assertions that “the
Town clearly believed the [e]asement was not legally sufficient” and that this
determination served as the basis for its decision. Richeson provides one example
from the record, citing the following statement from one plan commission
member:

And above and beyond is that easement to the property, the
access to the property. It’s going to put a lot of burden on
that easement. From what I understand was originally for
residential use, and now we have, was it up to 41 units
possible going in and out of there every day? I would think
that that easement would be fully abused.

Richeson fails to acknowledge, however, that immediately after the plan
commission member made the above statement, another member clarified the
proper consideration of the easement, stating, “I know that the easement in

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No. 2024AP700

question is sort of a separate question, but it can factor into your thinking. I see
it’s kind of problematic. But that’s a whole nother ball game, I guess.”9

¶23 We agree with the Town that, at most, “it was the existence of a
dispute about the [e]asement, not the Town’s legal interpretation of the
[e]asement, that the [Town] concerned itself with.” As the zoning administrator
stated at the first meeting, “Whether or not sufficient access is provided for the
proposed use is fully within the purview of the [p]lan commission and the Town
Board.” At that meeting, a neighboring property owner, and the grantor of the
easement, testified that the easement was “supposed to have been a driveway,” and
he further stated, “I’m totally against it. I’m not going to have a road made out of
my driveway.” The fact that this public comment was made does not mean that
the Town interpreted the easement, determined its intent, or decided what the

9
Richeson also asserts that Town Chairperson Dennis Clegg repeatedly confirmed in his
deposition “that the [e]asement was a primary factor in the Town’s denial of the [r]ezone, even
though [Clegg] conceded that he never reviewed the [e]asement and had no personal knowledge
of it.”

As an initial matter, throughout his briefing, Richeson repeatedly points to Clegg’s
deposition. The Town, in its response, questions whether “Clegg’s deposition testimony is even
permissible evidence on certiorari review” because common law certiorari review “is limited to
the record compiled by the municipality.” See North Cent. Conservancy Tr., Inc. v. Town of
Harrison, 2023 WI App 64, ¶11, 410 Wis. 2d 284, 1 N.W.3d 707. According to the Town,
“Clegg’s deposition came over a year later and was not evidence before the Board. [Richeson]
never moved to supplement the [c]ircuit [c]ourt record with Mr. Clegg’s deposition and,
therefore, it is not part of the municipality’s record, which is what the Court of Appeals is to
review in a certiorari action.” Richeson does not appear to respond to this argument in his reply
brief. “Unrefuted arguments are deemed admitted.” See State v. Chu, 2002 WI App 98, ¶41, 253
Wis. 2d 666, 643 N.W.2d 878.

Regardless, if we were to consider Clegg’s deposition, it would not change our
conclusion that the Town did not proceed on an incorrect theory of law by considering the
existence of the easement. Further, we agree with the circuit court’s statement that “the intent
and statements of a single board member whose vote carries no greater weight than that of any
other board member does not defeat the presumption of the validity of the actions of the [Town].”

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No. 2024AP700

easement allows or does not allow. In fact, the Town’s attorney provided the plan
commission with the following warning:

It’s not your job to be judges to decide what an easement
allows or doesn’t allow. You know, that’s beyond all of
our pay grades here. So don’t be tempted to say the
easement allows this or doesn’t allow this. But if you think
that the questions about an easement are relevant to your
discussion, you might think that.

We therefore disagree that the Town proceeded on an incorrect theory of law by
merely discussing the easement.

¶24 Third, Richeson argues that the Town proceeded on an incorrect
theory of law because it misapplied and misapprehended the HCO. There is no
dispute that the property is located within the HCO. See ZONING REGULATIONS
§ 17.3.13(B). According to Richeson, “[t]he Town claimed the [r]ezone to be
incompatible with adjoining properties (even though the Town did not ‘expressly’
state it), even though numerous properties in the vicinity are already zoned C-1,
including the other half of the [p]roperty.” Richeson, therefore, “contend[s] that
the Town failed to apply the appropriate standards under the HCO” because “its
determination that the [r]ezone is somehow ‘incompatible’ [with the adjoining
properties and the comprehensive plan] was not correct as a theory of law.”

¶25 We conclude that the Town did not misconstrue the applicability of
the HCO. The Zoning Regulations provide that permitted uses in the HCO are
“[a]ny use listed as a Permitted Use in the C-1 District … other than uses deemed
by the [p]lan [c]ommission to be incompatible with a use present on an abutting
lot.” ZONING REGULATIONS § 17.3.13(C)(1). The Zoning Regulations further
provide that “[t]he determination of incompatibility shall be based on one or more
of the following:” (a) “[t]he foreseeable external impacts of the proposed use on
adjoining parcels”; (b) “[t]he protection of interests and preservation of property

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No. 2024AP700

values of established businesses”; and (c) “[t]he safety of the general public.”
ZONING REGULATIONS § 17.3.13(C)(1)(a)-(c).

¶26 Here, based on the members’ comments, the plan commission
expressed that its “top goal” was “to take care of [the Town’s] residents,” and it
found that Richeson’s plan was incompatible with the residential uses of the
surrounding lots. Further, the public comments, which the commission relied
upon, addressed issues with regard to each of the factors in ZONING REGULATIONS
§ 17.3.13(C)(1)(a)-(c). Richeson presents no legal authority for the proposition
that because the property was in the HCO, it was required to be zoned entirely C-1
Commercial. See State v. Pettit, 171 Wis. 2d 627, 646, 492 N.W.2d 633 (Ct. App.
1992) (“Arguments unsupported by references to legal authority will not be
considered.”). Therefore, the Town did not misconstrue the applicability of the
HCO.

¶27 Fourth, Richeson argues that the Town proceeded on an incorrect
theory of law because it wrongfully focused on the CUP as grounds for denying
the rezone. According to Richeson, “[t]he rezoning of property and request for a
[CUP] are completely independent requests,” with different standards under the
zoning ordinance, “and the Town should have taken them as such.”

¶28 We conclude that the Town is allowed to consider the anticipated
use of a property when evaluating a rezoning application. While Richeson
discusses, in detail, the different analyses required for a CUP and a rezoning
request, he fails to cite any legal authority for the proposition that the Town is
specifically prohibited from considering the future use of the property when
making a rezoning decision. See Pettit, 171 Wis. 2d at 646. He asserts that
nothing in the Zoning Regulations “provides for the consideration of a

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No. 2024AP700

CUP … when determining what base zoning classification is appropriate.”
However, the inverse is also true; nothing prohibits it.

¶29 The Zoning Regulations simply provide that “[w]henever the public
necessity, convenience, general welfare, or good zoning practice require, the Town
Board may, by ordinance, change the District boundaries or amend, change, or
supplement the regulations established by this Chapter or amendments thereto.”
ZONING REGULATIONS § 17.11.01. Further, our case law tells us that whether to
rezone a property is a “fact-intensive, individualized determination.” Miller v.
Zoning Bd. of Appeals, 2022 WI App 51, ¶26, 404 Wis. 2d 539, 980 N.W.2d 295.
And it further provides that “[t]he factors to be weighed in considering the validity
and reasonableness of rezoning are several,” including “whether the rezoning is
consistent with long-range planning and based upon considerations which affect
the whole community”; “[t]he nature and character of the parcel”; “the use of the
surrounding land and the overall scheme or zoning plan”; “the interests of public
health, morals and safety”; and “the promotion of public welfare, convenience and
general prosperity.” Step Now Citizens Grp. v. Town of Utica Plan. & Zoning
Comm., 2003 WI App 109, ¶30, 264 Wis. 2d 662, 663 N.W.2d 833 (citations
omitted).10

10
Richeson challenges the Town’s citation to Step Now Citizens Group v. Town of
Utica Planning & Zoning Committee, 2003 WI App 109, 264 Wis. 2d 662, 663 N.W.2d 833. He
argues that Step Now “is distinguishable and not dispositive” because “it does not address a
situation, like here, where the municipality decided a base zoning classification on the basis of a
potential, future Conditional Use (the applicable standards of which differ),” “it dealt with only a
rezone and a Permitted Use.” Richeson distinguishes Step Now on its facts, but there is no
indication in the decision that the factors to be weighed in considering the validity and
reasonableness of a rezoning decision are applicable only under the specific facts of that case
rather than being a general proposition of law. Regardless, we believe the factors outlined in Step
Now are applicable here.

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No. 2024AP700

¶30 We agree with the Town that these factors cannot be considered in a
vacuum. As the Town explains,

The public interest for or against a rezone cannot be
determined if the analysis is simply “should this parcel
have a commercial designation” without knowing what will
be done with that designation. The rezoning determination
depends on the specific land use proposal, which should be
analyzed in depth. Indeed, it is impossible for a
municipality to decide whether a rezoning is appropriate
without knowing the proposed land use and determining
whether that use is even allowed in the proposed new
zoning category. Nor is [Richeson’s] approach consistent
with the required public hearing and input processes for
rezones. Interested parties do not attend rezoning hearings
to provide input on abstract zoning map concepts, divorced
from the specific project. They are interested in what is
actually going to happen at their neighboring properties.

Given the above, it is not unreasonable for a municipality to act on a rezoning
application by at least minimally considering the proposed land use. Cf. id., ¶48
(“Step Now cites no authority for the proposition that in making a legislative
decision, a municipality that gathers all possible information and better educates
itself and its citizens about the ramifications of a zoning decision is [erroneously
exercising] its discretion or acting in excess of its power.”).

II. Arbitrary and unreasonable

¶31 Next, Richeson asserts that the Town’s decisions on his rezoning and
CUP applications were arbitrary and unreasonable. According to Richeson, the
record is “devoid of any ‘rational basis’ from actual evidence,” and, instead, the
Town’s decisions were “based on the Board’s will, judgment and personal
feelings” and “on the ‘recommendation and rationale of the [p]lanning
[c]ommission.’” “Adopting the [p]lan [c]ommission’s findings blindly without
any actual support or evidence,” he argues, “demonstrates the arbitrary nature of
the Board’s decision.” Further, he complains that the “actual reasoning for the

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[p]lan [c]ommission’s recommendation was based on town patrons and biased
neighbors’ opinions,” which were based on “emotion and speculation.” Finally,
Richeson renews his complaint that the Town “highly considered” the easement
when it reached its decision.11

¶32 We conclude that the Town’s decisions were not arbitrary or
unreasonable. A determination that has a rational basis is not arbitrary. Van
Ermen v. DHSS, 84 Wis. 2d 57, 64, 267 N.W.2d 17 (1978). In this case, the
Town heard several public comments expressing disfavor with Richeson’s
proposal. As our supreme court has stated, “[z]oning is a matter of local concern,”
and “public expressions of support or opposition establish a valid basis—that is,
substantial evidence—for a decision.” AllEnergy Corp. v. Trempealeau Cnty.
Env’t & Land Use Comm., 2017 WI 52, ¶87 & n.33, 375 Wis. 2d 329, 895
N.W.2d 368. These concerns were legitimate to the people expressing them, were
not based upon speculation, and property owners are competent to testify
regarding impacts on their property. See Eco-Site, LLC v. Town of Cedarburg,
2019 WI App 42, ¶17 & n.7, 388 Wis. 2d 375, 933 N.W.2d 179. It was

11
Richeson also challenges the Town’s decisions as arbitrary because he states that the
Town “did not even follow its own ordinances in making the decision to deny the applications.”
The Zoning Regulations state that “[e]very final decision under this section shall be in writing
accompanied by findings of fact based on the record.” ZONING REGULATIONS § 17.12.03(B).
According to Richeson, “[t]here is no actual written decision from the Board with findings of
fact, only the Board’s meeting minutes summarizing its decision and discussion,” which he
contends “do not constitute an actual ‘final decision.’”

As the Town identifies, however, written findings are not required for certiorari review.
See Oneida Seven Generations Corp. v. City of Green Bay, 2015 WI 50, ¶48, 362 Wis. 2d 290,
865 N.W.2d 162 (“[M]unicipal administrative decisions need not be in writing.”). Richeson does
not assert that the Town’s reasoning was unclear based on the record, see id., and he cites no legal
authority for the proposition that the Town’s failure to follow its own regulations by not issuing a
written decision rendered its decision arbitrary, see State v. Pettit, 171 Wis. 2d 627, 646, 492
N.W.2d 633 (Ct. App. 1992). We therefore reject this argument.

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No. 2024AP700

appropriate for the Town to rely upon compelling input from the public, especially
from those who reside in the immediate vicinity of the property, to reach its
decision.

¶33 Richeson appears to suggest that the Town needed “factual
evidence … such as reports or studies” to support its decisions. However, the
Town correctly notes that this court has already rejected that position. In
Eco-Site, LLC, the Town of Cedarburg denied approval of a new cellular tower.
Id., ¶6. The town’s denial was based in part on its conclusion, drawn from citizen
testimony at the hearings, “that the tower was incompatible with many of the
neighboring homeowners’ residential lifestyle, and for some, the values of their
homes would be diminished by the ominous, shadow-casting tower.” Id., ¶27. In
affirming the town’s decision, we acknowledged that “no one produced a
large-scale, detailed analysis of the financial effect of the tower,” but we
concluded “that is not needed given our standard of review.” Id. Here, too, we
conclude that no studies were required to provide support for the Town’s
decisions.

¶34 Further, after the first hearing, the plan commission determined that
it required more information, and it requested an additional report on the
rezoning.12 The report explained that the rezoning must be “consistent with” the
Town’s comprehensive plan, and the report concluded that the proposed rezoning
would be inconsistent with the Primary Future Residential Development land use
classification, which was applicable to the property.

12
Based on the record, it appears that multiple staff reports were created by the zoning
administrator addressing Richeson’s applications.

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No. 2024AP700

¶35 Based on that report and the public comments, the Town concluded
that the rezoning request and the CUP would be inconsistent with the Town’s
comprehensive plan. The transcripts of the plan commission meetings flesh out
those findings based on the evidence in the record and state the Town’s reasoning
for the denials. On this record, we conclude that the Town’s decisions had a
rational basis and represented its judgment and not its will.

III. Substantial evidence

¶36 Lastly, Richeson argues that the Town’s denial of the rezoning and
the CUP applications was not based on substantial evidence. “‘Substantial
evidence’ is evidence of such convincing power that reasonable persons could
reach the same decision as the [Town].” See Oneida, 362 Wis. 2d 290, ¶43
(citation omitted). However, we are not asked to weigh the evidence, and we may
not substitute our view of the evidence for that of the Town. See Van Ermen, 84
Wis. 2d at 64. “The substantial evidence test is a significant hurdle … to
overcome because, in applying the test, this court is deferential to the [Town’s]
decision.” See AllEnergy Corp., 375 Wis. 2d 329, ¶88. “[W]e consider only
whether the [Town] made a reasonable decision based on the evidence before it.”
See id., ¶89.

¶37 Similar to his argument above, Richeson asserts that the record in
this case is devoid of any substantial evidence, and the Town’s decisions on his
applications were based “on uncorroborated hearsay and conjecture from
interested neighbors.” Richeson argues that “no one validated whether property
values would decrease or an increase in demand for public safety services [would
occur] because of alleged trespassing or theft,” and “no one provided any evidence

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No. 2024AP700

that somehow noise and traffic would significantly increase [at] ‘all times of day
and night.’”13

¶38 For many of the same reasons why we determined that the Town’s
decision was not arbitrary or unreasonable, we conclude that substantial evidence
supported the Town’s findings that the rezoning and CUP were not consistent with
the Town’s comprehensive plan. As noted above, the zoning administrator’s
report concluded that the proposed rezoning would be inconsistent with the
Primary Future Residential Development land use classification applicable to the
property and that denial of the rezoning would be consistent with the
comprehensive plan. It is undisputed that the property is surrounded by areas
zoned R-1 Residential and that individuals have had their residences located on
those adjacent properties for a long time. As a result, the plan commission’s
observations that “the incubator plan is not in line with the vision to maintain a
rural setting for the residential areas” and that it is “not consistent with the
surrounding residential uses” find support with evidence in the record.

¶39 Further, several members of the public expressed “significant
opposition” to the project during the public hearing. These comments raised
numerous concerns about Richeson’s proposed use, both alone and in relation to
the surrounding land uses. As addressed above, each of these concerns provided
evidence for the Town’s consideration, see AllEnergy Corp., 375 Wis. 2d 329,

13
Richeson also complains that the Board simply recited the plan commission’s findings
to reach its decisions. However, as the Board’s minutes make clear, the Board members attended
the plan commission’s proceedings and, therefore, witnessed the entirety of the evidence
presented and the commission’s deliberations. In reply, Richeson asserts that Clegg was not
present at one of the meetings, but that fact, involving one Board member, does not change our
decision here.

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No. 2024AP700

¶87,14 and no professional studies were necessary, see Eco-Site, LLC, 388 Wis. 2d
375, ¶17 & n.7, ¶27. As the Town suggests, the public commenters were
“permitted to draw upon their own knowledge and common sense in expressing
their opinions that adding 47 new businesses to a single property [would]
adversely impact the surrounding properties. Some things are self-evident.”
Given these public comments and the specific circumstances of the property, the
surrounding area, and the proposed use of the property, it was not unreasonable for
the Town to conclude that Richeson’s rezoning and CUP applications were
incompatible with the Town’s comprehensive plan. See Snyder, 74 Wis. 2d at
476. Richeson merely disagrees with his neighbors and the Town, which is not a
basis for us to overturn the Town’s decisions.

¶40 In summary, the Town made its decisions after reviewing
Richeson’s rezoning and CUP applications, and after considering multiple staff
reports, the Zoning Regulations, and the Town’s comprehensive plan. The Town
held three separate hearings of the plan commission and the Board, and it
considered public comments during one of those hearings. The Town
appropriately reviewed the evidence before reaching a final decision. There is no

14
Richeson challenges the Town’s citation to AllEnergy Corp. v. Trempealeau County
Environment & Land Use Committee, 2017 WI 52, ¶1, 375 Wis. 2d 329, 895 N.W.2d 368,
where Trempealeau County denied a CUP to AllEnergy for nonmetallic mineral mining.
Richeson essentially argues that the case does not stand for the “contention that public comment
alone is ‘substantial evidence’” because “the public in AllEnergy cited reports, studies, data and
specific examples of actual occurrences” with nonmetallic mineral mining. However, AllEnergy
does not stand for the proposition that public comments constitute evidence only when they
reference reports, studies, and first-hand experiences. The AllEnergy court noted that “the record
is replete with specific and substantial representations of people describing … their opinions” and
that “many of the people commenting at the hearing on AllEnergy’s proposal … will be living,
working, and recreating alongside the proposed mine.” Id., ¶¶86-87. Members of the public do
not need special knowledge or information in order to voice opinions and concerns about their
community.

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No. 2024AP700

basis to conclude that the Town proceeded on an incorrect theory of law, that it
acted in an “arbitrary, oppressive, or unreasonable” manner, or that it could not
have reasonably reached its decision based on the evidence before it. See Ottman,
332 Wis. 2d 3, ¶35.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5. (2023-24).

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