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Judge decides in favor of company hoping to build McDonald’s

News Graphic Staff

Sept. 24, 2015

GRAFTON — Calling a Grafton decision to rescind a developer’s permit because of a missed zoning deadline “arbitrary,” a retired judge sided with the company hoping to build an anniversary McDonald’s on Highway 60 and Interstate 43.

A hearing was held Aug. 27 to consider a judicial appeal from Continental Grafton after the village reversed itself on granting a permit for the McDonald’s project the Plan Commission issued in March.

Continental contended the village had no right to reconsider the permit, and that pending litigation made it illegal; the village asked the Plan Commission to reconsider the permit after discovering the planned unit development zoning of the parcel was not tied to an underlying district, but had expired in 2009.

The Plan Commission rescinded the permit in May. Retired judge Neal Nettesheim, who presided over the hearing, ruled in favor of Continental in a Sept. 15 decision.

“The evidence presented at the March 24, 2015, Plan Commission meeting was such that the commission could reasonably grant Continental’s CUP (conditional use permit) application,” Nettesheim said in the decision. “Therefore, I find that the Plan Commission’s later decision, based upon the same prior evidence, was arbitrary, oppressive and unreasonable, representing the commission’s will and not its judgment.”

Nettesheim recognized the village’s argument that village ordinance voids previously granted permits in a planned unit development if the applicant does not complete construction within three years of the PUD’s plan approvals; as the PUD for Grafton Commons was approved in April 2006, that expiration occurred in 2009.

Nettesheim cited the village ordinance that dictates construction on such parcels must be completed within three years, and stated that the Plan Commission rescinded the permit based on this expiration. The expiration clause of the zoning district was discovered by the village after the March permit approval, which then led to the May decision to void the permit approval.

Continental Grafton appealed the decision, arguing that the village had no right to reconsider the same decision. Nettesheim’s decision stated that this is the general rule, with the exception that a decision can be reconsidered where the original decision was based on a mistake, and said “case law demonstrates that there must be sufficient linkage between the mistake and the underlying municipal decision.”

In the final analysis section of Nettesheim’s decision, he cited the village staff’s mistake of thinking the development zoning had an underlying district and ruled that that mistake did not possess a sufficient link to the permit’s approval to rescind it. The final decision was that the March issuance of the permit was final and the village’s rescission of it was not lawful, making no reference to the later discovery of the PUD expiration or that expiration being the village’s reason for rescinding the permit.

Village Administrator Darrell Hofland said the village has 30 days from the date of the arbitrator’s ruling to consider the different options and appeal the decision if they choose.

“In the interim period, the village is in communication with Continental Grafton, LLC,” Hofland said.

He said the matter will be discussed by the Village Board at its next meeting in October.

Melanie Boyung can be reached at