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COURT OF APPEALS
NOTICE
DECISION
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.
July 6, 2005
A party may file with the Supreme Court a
Cornelia G. Clark                                                                                               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.
                                                                                                                Cir. Ct. No.   2004CV132
Appeal No.                                                   2004AP1318
STATE OF WISCONSIN                                                                                              IN COURT OF APPEALS
DISTRICT II
WILLIAM GILL, LUCY GILL, THOMAS GENGLER, RUSS PETERSEN,
WAYNE HOLT, RONALD DEABLER, AS TRUSTEE OF THE JOHN W.
DEABLER RESIDENTIAL TRUST, D. RODNEY BLUHM, MARY R. BLUHM,
PAUL ERDMANN, KATHY ERDMANN, DONALD COUNSELL, AND
SUE COUNSELL,
PLAINTIFFS-APPELLANTS,
OTHER NEIGHBORS OF PABST FARMS,
PLAINTIFF,
V.
CITY AND COMMON COUNCIL OF OCONOMOWOC, PLAN COMMISSION OF
OCONOMOWOC, CITY PLANNER OF OCONOMOWOC ROLAND TONN, PABST
FARMS DEVELOPMENT, LLC, OPUS NORTH CORPORATION, AND
ROUNDY'S, INC.,
DEFENDANTS-RESPONDENTS.




No.   2004AP1318
APPEAL from a judgment of the circuit court for Waukesha County:
ROBERT G. MAWDSLEY, Judge.  Affirmed.
Before Anderson, P.J., Nettesheim and Higginbotham, JJ.
¶1                                                                                        PER CURIAM.    The appellants appeal from an order of the circuit
court that granted the respondents’ motion for summary judgment and dismissed
the appellants’ action.   The appellants argue that the circuit court erred when it
concluded  that  the  appellants  lacked  standing  to  challenge  the  action  of  the
Common Council of Oconomowoc in granting a conditional use permit.   Because
we conclude that the circuit court properly determined that the appellants lacked
standing  under  WIS.  STAT.                                                              § 62.23(7)(f)2.                                                      (2003-04),1  and  granted  summary
judgment to the respondents, we affirm.
¶2                                                                                        This matter involves the proposal of  Opus North Corporation to
build a food and grocery distribution facility to be operated by Roundy’s Inc., on
property  owned  by  Pabst  Farms  Development,  LLC.     Roland  Tonn,  the
Oconomowoc City Planner, reviewed the application and determined that it was
complete.   The Plan Commission of Oconomowoc held public hearings and voted
to recommend approval of the conditional use permit to the Common Council of
Oconomowoc.   The Common Council approved the conditional use permit for the
project.                                                                                  (The respondents shall collectively be referred to as “the City.”)
¶3                                                                                        The  appellants  are  property  owners  in  the  Town  of  Summit,
(hereinafter “the property owners”) who brought this action on their own behalf
1  All references are to the 2003-04 version of the Wisconsin Statutes unless otherwise
noted.
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No.   2004AP1318
and on behalf of other neighbors of Pabst Farms, alleging that each of them has
been or will be injured by the actions of the City.   The City moved for summary
judgment arguing that the property owners lacked standing to pursue their claims
under WIS. STAT. § 62.23(7)(f)2.   The circuit court held a hearing on the motions.
The circuit court found that some of the plaintiffs were neighboring property
owners as defined by the statute, and some were not.   The court further found that
none of the plaintiffs had shown that they were specially damaged as required by
the  statute.    The  court  concluded  that  the  property  owners,  therefore,  lacked
standing to challenge the Common Council’s decision to grant a conditional use
permit to the respondents.   The court dismissed the action and the property owners
appeal.
¶4                                                                                         Our  review  of  the  circuit court’s grant of  summary judgment is
de novo, and we use the same methodology as the circuit court.   M&I First Nat’l
Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496-97, 536 N.W.2d
175 (Ct. App. 1995).
We first examine the complaint to determine whether it
states a claim, and then we review the answer to determine
whether it joins an issue of material fact or law.    If we
determine that the complaint and answer are sufficient to
join  issue,  we  examine  the  moving party’s  affidavits  to
determine whether they establish a prima facie case for
summary judgment.   If the movant has carried his [or her]
initial  burden,  we  then  look  to  the  opposing  party’s
affidavits to determine whether any material facts are in
dispute that entitle the opposing party to a trial.
Schurmann v. Neau, 2001 WI App 4, ¶6, 240 Wis. 2d 719, 624 N.W.2d 157 (Ct.
App. 2000) (citations omitted).   In our review, we are limited to consideration of
the pleadings and evidentiary facts submitted in support and opposition to the
motion.   See Super Valu Stores, Inc. v. D-Mart Food Stores, Inc., 146 Wis. 2d
568, 573, 431 N.W.2d 721 (Ct. App. 1988).
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No.   2004AP1318
¶5                                                                                       The property owners first argue that the circuit court incorrectly
determined that WIS. STAT. § 62.23(7)(f)2. applies to this action.   The property
owners  argue  that  the  case  should  have  been  decided  under  § 62.23(7)(e)10.,
which allows  “[a]ny person or persons, jointly or severally aggrieved by any
decision of the board of appeals” to commence a certiorari action.   They argue that
the City violated its own zoning ordinances during the approval procedure, and
thereby  deprived  the  property  owners  of  the  opportunity  to  appeal  the  Plan
Commission’s decision to the Board of Appeals.   Since they should have been
allowed to appeal to the Board of Appeals, they argue, this court should allow
them  to   satisfy  the   less   restrictive   standing  requirements   contained   in
§ 62.23(7)(e)10.
¶6                                                                                       The City responds that the challenged action was properly taken by
the Common Council, and that the standing requirements for challenging an action
taken by the Common Council are set out in WIS. STAT. § 62.23(7)(f)2.   The City
asserts that the property owners are arguing, in essence, that if the conditional use
permit had been approved in a different manner, then a different rule would apply.
We agree.
¶7                                                                                       Under the controlling statute, the Common Council has the authority
to appoint a plan commission or board of appeals.   See WIS. STAT. § 62.23(1) and
(7)(e).    The statute also states that its provisions do not prevent the Common
Council from granting special exceptions.   See § 62.23(7)(e)1.   In other words, as
the  City  argues,  the  Common  Council  is  allowed  to  make  conditional  use
decisions.    The statute further establishes that an aggrieved party challenges a
decision by the Common Council under  § 62.23(7)(f)2.    Because the property
owners  are  challenging  a  decision  of  the  Common  Council,  the  circuit  court
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No.   2004AP1318
properly concluded that the property owners must meet the standing requirements
of § 62.23(7)(f)2.
¶8                                                                                          In  order  to  bring  a  challenge  to  a  decision  under  WIS.  STAT.
§ 62.23(7)(f)2., a property owner must establish that he or she is:                         (1) an adjacent
or neighboring property owner, and (2) that he or she is specially damaged.   The
circuit court determined that some of the plaintiffs were neighboring property
owners within the meaning of the statute.   More importantly, however, the court
determined that none of the property owners here established that they have been
or will be specially damaged by the decision to grant the conditional use permit.
We agree.
¶9                                                                                          The Wisconsin Supreme Court has defined “specially damaged” as
irreparable injury done to property  “when the injury threatened is special and
different from that of the general public.”   Jelinski v. Eggers, 34 Wis. 2d 85, 91,
148 N.W.2d 750 (1967) (quoting Holzbauer v. Ritter, 184 Wis. 35, 39, 198 N.W.
852  (1924)).    In  that  case,  a  neighboring  property owner  built  a  garage  that
violated a setback requirement of a zoning ordinance.   Id.   The supreme court
concluded that the plaintiffs had been specially damaged because they had been
denied                                                                                      “the  full  use  of  the  light  and  air  and  view  from  their  home   …  as
distinguished from general or public damage.”   Id. at 92.   In other words, the court
concluded that because of their proximity to the garage built in violation of the
ordinance,  this  injury  was  specific  to  these  plaintiffs.    They were,  therefore,
specially damaged within the meaning of the applicable statute.  Id.
¶10    In this case, however, the property owners have neither alleged nor
proved that they are facing irreparable injury as a result of the City’s actions that is
different from any injury faced by the general public.   At the most, they have
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No.   2004AP1318
established that all of the homes on the northern shore of Middle Genesee Lake
and the properties to the east and west of the proposed distribution center may be
injured by the alleged increase in noise and traffic.   Because this is a potential
injury faced by the general public, and is not specific to these appellants, we agree
with the circuit court’s finding that they have not demonstrated that they have
been specially damaged within the meaning of the statute.2    Consequently, we
must also agree with  the circuit court’s conclusion that they lack standing to
challenge the Common Council’s decision to grant a conditional use permit.   For
the reasons stated, we affirm the judgment of the circuit court.
By the Court.—Judgment affirmed.
                                                                                               This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                      (b)5.
2  Because we conclude that none of the plaintiffs established that they were specially
damaged, we need not address that part of the circuit court’s decision that determined which
plaintiffs were neighbors within the meaning of the statute.  See WIS. STAT. § 62.23(7)(f)2.
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