On appeal, New Berlin keeps its large-lot rules

New Berlin - Homeowners in a neighborhood with larger yards are breathing sighs of relief after the Court of Appeals for District 2 upheld New Berlin's rules governing splitting lots.

The court ruled that New Berlin had not acted arbitrarily or discriminated against Richard Guse of the 19100 block of Hillcrest Drive when the Common Council refused to let him split his lot.

Aldermen said the split-off lot would not be big or wide enough based on the average size of lots in the neighborhood. City ordinances call for both lots resulting from a split to be at least as large as the average lot size in the neighborhood. Those rules were enacted to prevent property owners of larger lots from chopping them up later on.

The Court of Appeals ruled that the city's standards for splitting lots were reasonable and that the city had abided by them.

No contrary proof

However, it said it might have been another matter if Guse had supplied information supporting his claim that the city had ignored those same standards in other instances.

"If the facts alleged by Guse were supported by the record, we could consider the merits of this issue - but they are not," the court wrote in its decision. "Guse simply has not shown that the council's decision was discriminatory."

Neither did the court find merit in Guse's other arguments that there are three homes across the street so it should not be a problem for three homes to be on his side, too, and that his lot is large compared to the lots across the street.

Abating neighbors' concerns

The appellate court's decision was a relief to some neighbors.

"I'm glad it settled the way it did, so we didn't set a precedent," neighbor Robert Layman said.

If the city's rules governing lot splitting were dumped, population densities could go up all over the city, Layman said.

He and his family thought they were protected from houses popping up on what had been neighbors' lawns not only city ordinance, but by subdivision covenants.

"That was one of the covenants when he built here over 30 years ago," Layman said.

City consistency

Similarly, New Berlin Mayor Jack Chiovatero, reacting to the Appeals Court decision said, "It's good news and it goes to show the Plan Commission and council understand our code."

And there is good reason for that code, Chiovatero said.

"People move into a neighborhood and they don't like to see the neighborhood or the feel of the neighborhood change," he said.

The wrangle that has gone on for about two years will stop here, Chiovatero predicted. Although Guse could try taking the case to the Wisconsin Supreme Court, the mayor doubted it's the kind of case the high court is interested in.

The Guse home, up for sale with an asking price of $269,000, was taken off the market Feb. 3. Guse could not be contacted for comment.

Overturning earlier decision

The Court of Appeals decision reverses a decision by Waukesha County Circuit Court Judge Mac Davis, who had ruled that the ordinance saying the city "may" reject a lot split that doesn't meet city requirements unduly opens up the possibility of favoritism and discrimination.

In his ruling in February 2011, Davis had no problem with the city denying simply on the basis that the two new lots would be smaller than the neighborhood average. But to introduce flexibility also introduces the potential for abuse, he ruled. That word "may" has since been changed to "will" in city ordinances.

The city appealed that decision.