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.
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.
Plan Commission rescinded the permit in May.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.
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
Nettesheim cited the village ordinance that dictates
construction on such parcels must be completed within
three years, and stated that the Plan Commission
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
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.”
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.
the interim period, the village is in communication with
Continental Grafton, LLC,” Hofland said.
said the matter will be discussed by the Village Board
at its next meeting in October.
Melanie Boyung can be reached at