Written by STEVE OSTERMANN
Wednesday, 20 May 2015 18:18
Continental Grafton’s lawsuit asks court to overturn village’s rejection of proposed drive-through off I-43
Six weeks after rejecting a permit application to build a McDonald’s restaurant in the freeway interchange district, the Village of Grafton is facing a legal challenge of its decision.
Continental Grafton LLC, the developer that wants to construct a restaurant with a drive-through lane in the Grafton Commons, filed a lawsuit last week asking an Ozaukee County Circuit Court judge to order the village to issue a building permit for the project.
The lawsuit also asks the judge to order the village to hold a timely Zoning Board of Appeals hearing on Continental’s challenge to the village’s decision and not allow the village’s Plan Commission to take any further action on the project.
“Village staff misconstrued the zoning of Grafton Commons” in making its decision, the lawsuit states.
This spring, Continental proposed building a 60th-anniversary-styled McDonald’s on Highway 60 just west of I-43 at the south end of the Grafton Commons property. Although a village ordinance prohibits restaurants with drive-through lanes in the C-4 freeway interchange district, the firm sought permission through a proposed zoning code language change that would have allowed the business as an exception.
The Plan Commission on March 24 approved a conditional-use permit for a drive-through McDonald’s with a condition that the Village Board approve the language change. However, the board denied the request by a 5-2 vote on April 6.
The village subsequently acknowledged that the parcel for the proposed McDonald’s is part of planned unit development zoning for the Grafton Commons approved in 2006 and not linked to the C-4 zoning district. In response, the Plan Commission rescinded its March 24 decision and agreed to reconsider the project May 26.
In challenging the Village Board decision, Continental asked the village’s Zoning Board of Appeals on April 22 to approve the site plan and building permits for the restaurant. As of early this week, the village had not scheduled a meeting to consider the appeal.
On May 8, Continental also filed a complaint with the Ozaukee County district attorney alleging the village violated the state’s Open Meetings Law by discussing the project in closed session before its April 6 vote.
Village Administrator Darrell Hofland said the open-meetings complaint is unfounded and the village is prepared to defend itself against that complaint as well as the lawsuit.
“With legal support by the village attorney, the Village Board acted in accordance with the Open Meetings Law,” Hofland said. “The village will vigorously defend itself.”
District attorney Adam Gerol has 20 days from the filing date to make a decision on the open-meetings allegation.
The lawsuit seeks court orders to have the Plan Commission remove reconsideration of the Grafton Commons conditional-use permit from its May 26 agenda and have the Board of Appeals schedule a hearing on the firm’s appeal.
The case was assigned to Circuit Court Judge Joseph Voiland.
On Tuesday, Hofland said the village has not been contacted by the court and intends to have the Plan Commission proceed with the agenda item. The village has 20 days to respond to the lawsuit after the May 12 filing date, after which the court may issue a ruling.
“The building inspector cannot issue a building permit for McDonald’s due to Continental Grafton LLC not having satisfied all the conditions” of the conditional-use permit, Hofland said.
In the lawsuit, Continental states its representatives first met with the village in March 2014 about developing a McDonald’s with a drive-through and subsequently “followed the process orchestrated by the Village staff and pursue Plan Commission and Village Board approval as Village staff directed.”
“Continental has been trying to develop the Grafton Commons Restaurant Pad since 2008,” the lawsuit states.
“Quick serve restaurants are critical to the success of retail complexes to drive traffic and serve customers and employees.”
The village is being represented in the case by its attorney, Michael Herbrand.