NO.

In the Supreme Court of the United States

EAGLE COVE CAMP & CONFERENCE CENTER, INC., a Wisconsin non-stock corporation, et al., Petitioners, v. TOWN OF WOODBORO, WISCONSIN, et al.,
Respondents.

On Petition for Writ of Certiorari to the United States Court of Appeals for the Seventh Circuit

PETITION FOR WRIT OF CERTIORARI

Roman P. Storzer Robert L. Greene Of Counsel Storzer & Greene, P.L.L.C. 11 Broadway, Suite 615 New York, NY 10004 (212) 943-4343
storzer@storzerandgreene.com greene@storzerandgreene.com

Arthur G. Jaros, Jr. Counsel of Record The Law Office of Arthur G. Jaros, Jr. 1200 Harger Road, #830 Oak Brook, IL 60523 (630) 574-0525
agjlaw@earthlink.net

Counsel for Petitioners

Becker Gallagher Cincinnati, OH Washington, D.C. 800.890.5001

i QUESTIONS PRESENTED 1. Does the Equal Terms provision of RLUIPA, 42 U.S.C. 2000cc(b)(1), prohibit favorable treatment of secular assembly and institutional uses that are similarly situated to the prohibited religious assembly and institutional use, as held by the Third, Ninth and Eleventh Circuits, or does it only prohibit favorable treatment of the most similar secular assembly and institutional use, as the Seventh Circuit Court of Appeals held below. 2. Does the Substantial Burdens provision of RLUIPA, 42 U.S.C. 2000cc(a): only extend to burdens on religious exercise that are absolute in nature, prohibiting the religious land use at issue entirely from the relevant jurisdiction, as the Court of Appeals held; not extend to burdens on religious exercise created by neutral land use regulation, as the Court of Appeals held, or does it also apply to neutral land use regulation, as held by the Fourth Circuit; and permit aesthetic interests, namely preserving the rural and rustic character of the Town, to be a compelling governmental interest under 42 U.S.C. 2000cc(a)(1)(A) as held by the Court of Appeals? 3. Does the total exclusion of a particular form of religious assembly by a government from the entire jurisdiction of a Town, where such jurisdiction is regulated in part both by Town and County land use regulation, violate RLUIPAs Total Exclusion provision, 42 U.S.C. 2000cc(b)(3)(A)?

ii LIST OF ALL PARTIES (1) Petitioner Eagle Cove Camp & Conference Center, Inc., a Wisconsin non-stock corporation, was a plaintiff in the trial court and an appellant in the Court of Appeals. Its corporate disclosure statement is enclosed. (2) Petitioner Arthur G. Jaros, Jr., as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, as trustee of the Arthur G. Jaros, Sr. Declaration of Trust and of the Dawn L. Jaros Declaration of Trust, and in his personal capacity, was a plaintiff in the trial court and appellant in the Court of Appeals. (3) Petitioner Wesley A. Jaros, as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, was a plaintiff in the trial court and appellant in the Court of Appeals. (4) Petitioner Randall S. Jaros., as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, and in his personal capacity, was a plaintiff in the trial court and appellant in the Court of Appeals. (5) Petitioner Crescent Lake Bible Fellowship, a Wisconsin non-stock corporation, was a plaintiff in the trial court and an appellant in the Court of Appeals. Its corporate disclosure statement is enclosed. (6) Petitioner Kim Williamson was a plaintiff in the trial court and an appellant in the Court of Appeals.

iii (7) Respondent Town of Woodboro, Wisconsin, was a defendant in the trial court and an appellee in the Court of Appeals. (8) Respondent County of Oneida, Wisconsin, was a defendant in the trial court and an appellee in the Court of Appeals. (9) Respondent Oneida County Board of Adjustment was a defendant in the trial court and an appellee in the Court of Appeals.

iv CORPORATE DISCLOSURE STATEMENT EAGLE COVE CAMP & CONFERENCE CENTER, INC. is a Wisconsin non-stock corporation and has no shareholders. Therefore, it has no parent corporation and no publicly held company owns any interest in the corporation. CRESCENT LAKE BIBLE FELLOWSHIP is a Wisconsin non-stock corporation and has no shareholders. Therefore, it has no parent corporation and no publicly held company owns any interest in the corporation.

v TABLE OF CONTENTS QUESTIONS PRESENTED. . . . . . . . . . . . . . . . . . . i LIST OF ALL PARTIES . . . . . . . . . . . . . . . . . . . . . . ii CORPORATE DISCLOSURE STATEMENT. . . . . iv TABLE OF CONTENTS. . . . . . . . . . . . . . . . . . . . . . v TABLE OF CITED AUTHORITIES. . . . . . . . . . . . . x CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS OF THE OPINIONS AND ORDERS ENTERED IN THE CASE. . . . . 1 JURISDICTIONAL STATEMENT . . . . . . . . . . . . . . 1 CITATIONS TO CONSTITUTIONAL STATUTORY AND REGULATORY PROVISIONS INVOLVED. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 CONCISE STATEMENT OF THE CASE. . . . . . . . . 2 ARGUMENT FOR ALLOWANCE OF THE WRIT 13 1. THE COURT OF APPEALS HAS CONSTRUED THE EQUAL TERMS PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEALS . . . 14

vi 2. THE COURT OF APPEALS HAS CONSTRUED THE SUBSTANTIAL BURDENS PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEALS AND OF THIS COURT . . . . . . . . . . . . . . . . . . . . . . . . 21 A. The Court of Appeals Holding that a Substantial Burden Can Arise Only When Government Action Renders Religious Exercise Impossible or Effectively Impracticable is Contrary to Other Circuit Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 B. The Court of Appeals Holding that Substantial Burdens on Religious Exercise Can Never Be Created by Neutral Land Use Regulations is Contrary to the Plain Text of RLUIPA and a Decision of the Fourth Circuit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 C. The Court of Appeals Holding that Aesthetic Interests Constitute a Compelling Governmental Interest Is Contrary to the Holdings of this Court and Other Circuit Courts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 3. THE COURT OF APPEALS HAS CONSTRUED THE TOTAL EXCLUSION PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH THIS COURTS RULING IN SCHAD V. BOROUGH OF MOUNT EPHRAIM AND HAS DECIDED TWO IMPORTANT QUESTIONS OF FEDERAL LAW

vii WITH RESPECT TO THE SAME TOTAL EXCLUSION PROVISION THAT HAVE NOT BEEN SETTLED, BUT SHOULD BE SETTLED, BY THIS COURT. . . . . . . . . . . . . . 31 A. The Court Below Interpreted RLUIPAs Total Exclusion Provision in a Manner That Both Conflicts with Schad v. Borough of Mount Ephraim and Deprives Whole Categories of Religious Assemblies from Important Federal Protection Against Being Totally Excluded from Entire Jurisdictions . . . . . . . . . . . . . . . 31 B. The Court Below Interpreted RLUIPAs Total Exclusion Provision in a Manner That Permits Governments of Superior Jurisdictions to Totally Exclude All Types of Religious Assemblies from All But One of Its Inferior Jurisdictions, Thereby Presenting an Important Question of Federal Law Concerning the Scope of RLUIPAs Protection of the Free Exercise of Religion . . . . . . . . . . 34 CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 APPENDIX Appendix A Opinion in the United States Court of Appeals for the Seventh Circuit (October 30, 2013) . . . . . . . . . . . . App. 1 Appendix B Opinion and Order in the United States District Court for the Western District of Wisconsin (February 1, 2013) . . . . . . . . . . . App. 19

viii Appendix C Judgment in the United States District Court for the Western District of Wisconsin (February 5, 2013) . . . . . . . . . . . App. 76 Appendix D Order Denying Petition for Rehearing and Petition for Rehearing En Banc in the United States Court of Appeals for the Seventh Circuit (December 10, 2013) . . . . . . . . . App. 78 Appendix E Decision of the Oneida County Board of Adjustment [R.63-54] (February 11, 2010) . . . . . . . . . . App. 80 Appendix F Decision of the Oneida County Planning & Zoning Committee [R.6352] (August 19, 2009) . . . . . . . . . . . . App. 91 Appendix G Constitutional, Statutory, and Regulatory Provisions Involved . . . . . . . . . . . . . . . . . . App. 102 Appendix H Oneida County Zoning and Shoreland Protection Ordinance Excerpts [R.631; 78] . . . . . . . . . . . . . . . . . . . . . App. 145 Appendix I Oneida County Planning & Zoning Committee: Excerpts from Transcript of Conditional Use Permit Application Deliberative Session [R.110-4] (July 29, 2009) . . . . . . . . . . . . . App. 170 Appendix J Wisconsin Department of Natural Resources Grading Permit [R.77-49] (November 16, 2007) . . . . . . . . App. 178

ix Appendix K Minutes of Oneida County Planning & Zoning Committee Meeting [R.63-31] (June 14, 2006) . . . . . . . . . . . . . App. 189 Appendix L Color Photograph of Apartment Building Overlooking Squash Lake [R.77-53] . . . . . . . . . . . . . . . . . . App. 210 Appendix M Zoning Map of Riparian Lands at Squash Lake [R.63-21] . . . . . . App. 211

x TABLE OF CITED AUTHORITIES CASES: Adkins v. Kaspar, 393 F.3d 559 (5th Cir. 2004), cert. denied, 545 U.S. 1104 (2005) . . . . . . . . . . . 25 Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548 (4th Cir. 2013) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 28, 29 Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011) . . . . . . . . . . . . . . 19 City of Ladue v. Gilleo, 512 U.S. 43 (1994) . . . . . . . . . . . . . . . . . . . . . . . 30 Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003), cert. denied, 541 U.S. 1096 (2004) . . . . . 22, 23, 26 Cutter v Wilkinson, 544 U.S. 709 (2005) . . . . . . . . . . . . . . . . . . . 13 Dimmitt v. City of Clearwater, 985 F.2d 1565 (11th Cir. 1993) . . . . . . . . . . . . . . 31 Gilardi v. U.S. Dept of Health & Human Servs., 733 F.3d 1208 (D.C. Cir. 2013), cert. filed, (2013 in No.13-567 and 2014 in No.13-915) . . . . . . . . . . . . . . . . . . . . . . . 26 Gladson v. Iowa Dept of Corr., 551 F.3d 825 (8th Cir. 2009) . . . . . . . . . . . . . . . 26 Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978 (9th Cir. 2006) . . . . . . . . . . . . . . . . 23

xi Hale O Kaula v. Maui Planning Commn, 229 F. Supp. 2d 1056 (D. Haw. 2002) . . . . . . . . 36 Hobby Lobby Stores, Inc. et al., v. Kathleen Sebelius, et al., 723 F.3d 1114 (10th Cir. 2013), cert. granted, 134 S.Ct. (2013) . . . . . . . . . . . . . . 26 Holt v. Hobbs, Docket No. 13-6827 (March 3, 2014) . . . . . . . . . 13 International Church of Foursquare Gospel v. San Leandro, 673 F.3d 1059 (9th Cir. 2011), cert. denied, 132 S. Ct. 251 (2011) . . 24, 25, 30, 31 Lee v. Weisman, 505 U.S. 577 (1992) . . . . . . . . . . . . . . . . . . . . . . 35 Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007), cert. denied, 553 U.S. 1065 (2008) . . . . . . . 17, 18 Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. Appx. 729 (6th Cir. 2007), cert. denied, 553 U.S. 1093 (2008) . . . . . . . . . . . 25 McEachin v. McGuinnis, 357 F.3d 197 (2d Cir. 2004) . . . . . . . . . . . . . . . . 25 Metromedia v. City of San Diego, 453 U.S. 490 (1981) . . . . . . . . . . . . . . . . . . . . . . 30 Midrash Sephardi Inc. v. Town of Surfside, 366 F.3d 1214 at 1230 (11th Cir. 2004), cert. denied, 543 U.S. 1146 (2005) . . . . . 16, 17, 26

xii Moussazadeh v. Tex. Dept of Crim. Justice, 703 F.3d 781 (5th Cir. 2012) . . . . . . . . . . . . . . . 25 National Advertising Co. v. City of Orange, 861 F.2d 246 (9th Cir. 1988) . . . . . . . . . . . . . . . . 30 Neighborhood Enterprises v. City of St. Louis, 644 F.3d 728 (8th Cir. 2011), cert. denied, 132 S.Ct. 1543 (2012) . . . . . . . . . . 30 River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367 (7th Cir. 2010) (en banc) . . . . . . . 19 Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) . . . . . . . . . . . . . . 31, 32, 33, 38 Warsoldier v. Woodford, 418 F.3d 989 (9th Cir. 2005) . . . . . . . . . . . . . . . 25 Washington v. Klem, 497 F.3d 272 (3d Cir. 2007) . . . . . . . . . . . . . . . 25

Westchester Day School v. Village of Mamaroneck, 504 F.3d 338 (2d Cir. 2007) . . . . . . . . . . . . . . . . 22 Whitton v. City of Gladstone, 54 F.3d 140 (8th Cir. 1995) . . . . . . . . . . . . . . 30 CONSTITUTIONAL STATUTES PROVISIONS AND

United States Constitution, Amendment I . . . . . . . 2 United States Constitution, Amendment XIV, Section 1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 28 U.S.C. 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

xiii 28 U.S.C. 1331 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 13 28 U.S.C. 1343(a)(3) & (4) . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 1983 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc . . . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc(a) . . . . . . . . . . . . . . . . . . . . . . . . . i 42 U.S.C. 2000cc(a)(1) . . . . . . . . . . . . . . . . . . 11, 23 42 U.S.C. 2000cc(a)(1)(A) . . . . . . . . . . . . . . i, 12, 29 42 U.S.C. 2000cc(a)(2) . . . . . . . . . . . . . . . . . . . . . 27 42 U.S.C. 2000cc(b)(1) . . . . . . . . . . . . . . . . . . . i, 14 42 U.S.C. 2000cc(b)(3)(A) . . . . . . . . . . . . . . . . . i, 32 42 U.S.C. 2000cc-2 . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc-3 . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc-3(g) . . . . . . . . . . 22, 33, 34, 36, 38 42 U.S.C. 2000cc-4 . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc-5 . . . . . . . . . . . . . . . . . . . . . . . . . 2 42 U.S.C. 2000cc-5(7)(B) . . . . . . . . . . . . . . . . . . . . . 3 LEGISLATIVE HISTORY 146 CONG. REC. S7774, S7776 (daily ed. July 27, 2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32 RLPA of 1998, H.R. 4019, 105th Cong., (3)(b)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 RLPA, H.R. 1691, 106th Cong., (3)(b)(D) . . . . . . . . 36

xiv STATE STATUTES WIS. STAT. 59.69(1) . . . . . . . . . . . . . . . . . . 2, 4, 7, 35 WIS. STAT. 59.69(4) . . . . . . . . . . . . . . . . . . . . . . . . 37 WIS. STAT. 59.69(5)(c) . . . . . . . . . . . . . . . . . . . . 2, 35 WIS. STAT. 59.69(5)(d) . . . . . . . . . . . . . . . . . . . . . . . 4 WIS. STAT. 59.69(5)(e) . . . . . . . . . . . . . . . . . . . . . . 35 WIS. STAT. 60.10(2) . . . . . . . . . . . . . . . . . . . . . . . . . 2 WIS. STAT. 60.10(2)(c) . . . . . . . . . . . . . . . . . . . . . . . 4 WIS. STAT. 60.22(3) . . . . . . . . . . . . . . . . . . . . . . . 2, 4 WIS. STAT. 60.62(4) . . . . . . . . . . . . . . . . . . . . . . . 2, 4 WIS. STAT. 61.35 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 WIS. STAT. 62.23 . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4 WIS. STAT. 62.23(2) . . . . . . . . . . . . . . . . . . . . . . . . . 4 WIS. STAT. 66.1001 . . . . . . . . . . . . . . . . . . . . . . . 2, 4 ONEIDA COUNTY ZONING & SHORELAND PROTECTION ORDINANCE 9.12(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9.20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 9.22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 9.25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.25(C)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

xv 9.28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 9.42(E)(3) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 35 RULES Fed. R. Civ. P. 56(c) and (e)(2) . . . . . . . . . . . . . . . . . 2 OTHER AUTHORITIES Abandoning the Use of Abstract Formulations in Interpreting RLUIPAs Substantial Burden Provision in Religious Land Use Cases, Robert M. Bernstein, 36 COLUMBIA J. OF LAW & THE ARTS 283 (2013) . . . . . . . . . . . . . . . . . . . . . . . . . 21 Equal Terms: What Does It Mean and How Does It Work: Interpreting the Equal Terms Provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), Andrew Cleves, 80 U. CINCINNATI L. REV. 209 (2012) . . . . . . . . . . . . . 15 Incommensurable Uses: RLUIPAs Equal Terms Provision and Exclusionary Zoning in River of Life Kingdom Ministries v. Village of Hazel Crest, Tokufumi J. Noda, 52 B.C.L.REV. E. Supp. 71 (2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 Restoring RLUIPAs Equal Terms Provision, Sarah Keeton Campbell, 50 DUKE L.J. 1071 (2009) . . 14 RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases, Thomas E. Raccuia, 80 FORDHAM L. REV. 1853 (2012) . 14, 15

xvi RLUIPA: Necessary, Modest, and Under-Enforced, Douglas Laycock & Luke W. Goodrich, 39 FORDHAM URBAN L.J. 1021 (2012) . . . . . . . . 15, 21 RLUIPAs Equal-Terms Provisions Troubling Definition of Equal: Why the Equal-Terms Provision Must Be Interpreted Narrowly, Sean Foley, 60 KANSAS L. REV. 193 (2011) . . . . . . . . 14 When Religion and Land Use Regulations Collide: Interpreting the Application of RLUIPAs Equal Terms Provision, Ryan M. Lore, 46 U.C. DAVIS L. REV. 1339 (2013). . . . . . . . . . . . . . . . . . . . . . . . . 15

1 CITATIONS OF THE OFFICIAL AND UNOFFICIAL REPORTS OF THE OPINIONS AND ORDERS ENTERED IN THE CASE The opinion of the Seventh Circuit Court of Appeals dated October 30, 2013 in docket #13-1274 is officially reported at 734 F.3d 673 (7th Cir. 2013) and is unofficially reported as 2013 U.S. App. LEXIS 22151. Appendix A. An order of that court dated December 10, 2013 denied Petitioners petition for rehearing by the panel and en banc. Appendix D. The district courts memorandum opinion and order in docket #10-118 dated February 1, 2013, granting the motions for summary judgment of the Respondents and denying Petitioners motion for summary judgment as to liability on Count I--Total Exclusion Violation under the Religious Land Use and Institutionalized Persons Act of 2000--was not published. Appendix B. An unpublished judgment was entered thereon on February 5, 2013. Appendix C. JURISDICTIONAL STATEMENT The Court of Appeals entered judgment on October 30, 2013. Appendix A. Petitioners petition for panel and en banc rehearing was filed on November 13, 2013 and was denied by the Court of Appeals Order dated December 10, 2013. Appendix D. This petition for certiorari is filed per Supreme Court Rules 13(1) and (3) within ninety (90) days of the Court of Appeals denial of Petitioners timely filed petition for rehearing and/or for rehearing en banc. This Courts jurisdiction is invoked under 28 U.S.C. 1254(1).

2 CITATIONS TO CONSTITUTIONAL STATUTORY AND REGULATORY PROVISIONS INVOLVED United States Constitution, Amendment I; United States Constitution, Amendment XIV, Section 1; 28 U.S.C. 1331; 28 U.S.C. 1343(a)(3) & (4); 42 U.S.C. 1983; Religious Land Use and Institutionalized Persons Act of 2000: 42 U.S.C. 2000cc; 42 U.S.C. 2000cc-2; 42 U.S.C. 2000cc-3; 42 U.S.C. 2000cc-4; 42 U.S.C. 2000cc-5; Fed. R. Civ. P. 56(c) and (e)(2); WIS. STAT. 59.69(1); WIS. STAT. 59.69(5); WIS. STAT. 60.10(2); WIS. STAT. 60.22(3); WIS. STAT. 60.62(4); WIS. STAT. 61.35; WIS. STAT. 62.23; WIS. STAT. 66.1001. The relevant text of these provisions are set out in Appendix G. CONCISE STATEMENT OF THE CASE Petitioners Arthur G. Jaros, Jr., Wesley A. Jaros, and Randall S. Jaros, are brothers and co-trustees of an IRS-approved Section 501(c)(3) charitable trust formed in 2002 and named for their now deceased parents Arthur G. Jaros, Sr. and Dawn L. Jaros. They also serve as sole members of the board of directors of Petitioner Eagle Cove Camp & Conference Center, Inc. That corporation is likewise IRS-approved under Section 501(c)(3) of the Internal Revenue Code but also as a private operating foundation, being formed to develop a new year-round Christian camp on thirtyfour acres of prime inland lake front property having over 550 of frontage on Squash Lake situated in the Northwoods lakes and forest region of north central Wisconsin and within the jurisdictions of the Respondents Town of Woodboro and County of Oneida. App. 21-22.

3 The Jaros brothers Christian faith, as rooted in their Biblical understanding of stewardship including the concepts of first fruits and the offering without blemish,1 compelled them to dedicate and convert2 those thirty-four acres--family-owned for over sixty years--to full-time Christian ministry as a Bible camp, serving youth, including youth with medical disabilities, during the summer season and older teens and adults during the remainder of the year. App. 2426. Petitioners Arthur and Randall Jaros intend to personally teach Christian education courses at the camp. R. 16, 19. As the court below found: Eagle Cove believes that their religion mandates that the Bible camp must be on the subject property. Eagle Cove also believes that they must operate the Bible camp on a year-round basis. Neither of these beliefs is in dispute. App. 3. The camps acreage lies between the west shore of Squash Lake, a 400-acre clear water, sand-bottom inland lake, on the east and U.S. Highway 8, a major east-west highway traversing northern Wisconsin, on the west. A portion of the land lies within 1000 feet of the shoreline and, per Wisconsin statute, is considered Shoreland; the remainder near Highway 8 is nonshoreland. App. 23. The entire parcel is subject to the
1

Deposition of Arthur G. Jaros, Jr., R. 83, 84 at transcript page 245. Throughout this petition, R. refers to the District Court document number as listed on the docket.

RLUIPA itself expressly references conversion of private lands to religious use. 42 U.S.C. 2000cc-5(7)(B).

4 laws and regulations of both the Town of Woodboro and County of Oneida, and is located in zoning districts 2 and 4, as determined by the County zoning map. App. 3, 27. Pursuant to Wisconsin Statutes sections 60.10(2)(c) and 60.22(3), the electorate of the Town of Woodboro on April 12, 2005 voted to confer Village Powers upon its Town Board,3 thereby vesting it with land use planning power. WIS. STAT. 60.22(3), 61.35, 62.23. On April 14, 2009, the Town Board adopted a Comprehensive Plan,4 also known as a Master Plan,5 that incorporated by reference the Towns previously adopted 1997 Land Use Plan6 as twice revised during 19987 to serve as a guide for officials to use in planning the future development of the Town. WIS. STAT. 60.62(4), 62.23(2); R. 63-19, Chapter 7(D), ECF pp. 60 ff; R. 10340. Wisconsin Statutes section 59.69(1) requires the County of Oneidas zoning ordinance to incorporate the Towns plan. As consistently construed and applied by the Respondents, the Towns Land Use Map does not permit of any year-round religious camps anywhere within the Town. App. 9, 37. During the first half of 2000, the County adopted, pursuant to Wisconsin Statutes section 59.69(5)(d), a
3

R. 61-7. As noted by the Court of Appeals. App. 2. WIS. STAT. 66.1001(1)(a)2, 66.1001(2)(h). R. 63-20. R. 63-20, p. 11; App. 2.

5 comprehensive revision to its existing zoning ordinance known as the Oneida County Zoning and Shoreland Protection Ordinance (OCZSPO). The OCZSPO created thirteen different zoning districts exclusive of one special district (District 11). App. 27, 149-150 ( 9.20). The OCZSPO included a zoning map for each of the twenty Towns (including the Town of Woodboro) situated within the County. R. 103-3 to 103-22. Woodboros zoning map8 reflected Woodboros 1997 Land Use Plan9 and continues to reflect that plan as incorporated into the Towns 2009 Comprehensive Plan, which Land Use Plan did not provide any location for Petitioners religious land use. R. 63-19, Chapter 7(D), ECF pp. 60 ff; R. 103-40. Under Wisconsin law, the OCZSPO took effect upon County Board enactment in Shoreland areas throughout the unincorporated portions of County including a portion of the Petitioners property. App. 148 ( 9.12(B)). The OCZSPO took effect for non-shoreland areas only upon approval by a Towns own Board, which in Woodboros case was by resolution dated May 8, 2001. Id.; App. 3, 27 (R. 61-6). The easterly portion of the camps land abutting the lake front was zoned District 2, entitled Single Family Residential, and the westerly portion abutting U.S. Highway 8 was zoned District 4, entitled Residential and Farming. App. 3, 37.

R. 103-21. R. 63-20.

6 Within each zoning district, three categories of uses, each containing an enumerated specific land uses for that district, were provided, as follows: (1) Permitted (as of right) Uses; (2) Administrative Review Uses; and (3) Conditional Uses. App. 27, 151-152. The OCZSPO has no specific use expressly denominated for religious camps. Instead, the Respondents determined that Petitioners proposed use fell within the category of recreational camps. App. 93. Article X of the OCZSPO defines the term recreation camps to mean: Areas of land improved with buildings or tents, and sanitary facilities used for the accommodation of groups for educational or recreational purposes. App. 86. Recreational camps were listed in no zoning district as permitted-as-of-right uses but were listed by Sections 9.25 and 9.28 of the OCZSPO only as administrative review uses and then only for zoning Districts 5, entitled Recreational, and 10, entitled General Use.10 App. 37, 159. Churches and schools are
10

Seasonal recreational camps are listed only as administrative review uses and only in Forestry Districts 1-A and 1-B and General Use District 10 but not for District 5 Recreational. (App. 33). Thus, and as confirmed by the Countys zoning maps by type of use [R. 63-13, 63-14], the OCZSPO treats seasonal recreational camps as being a distinct use separate and apart from year-round recreational camps (as the Petitioners camp was classified by the

7 listed as conditional uses for various zoning districts, including Districts 2 and 4. App. 34, 156, 158. None of the Town of Woodboro was zoned District 5 or District 10 under the zoning map11 included as part of the OCZSPO that was formally adopted by the Towns Board12 and which map was required to and did [App. 31] incorporate the Towns own land use plan. WIS. STAT. 59.69(1). Recreational camps, which the County determined included Petitioners proposed Bible camp, are only permitted under certain conditions in zoning districts 5 or 10, neither of which, as noted, exists in the Town. Listed uses in the Countys zoning districts 2 and/or 4 (where the property is located) included schools (including secular boarding schools), community buildings, museums, community living arrangements of unlimited capacity, government uses of any type, public parks and playgrounds, hospitals, airports, and retail or wholesale business, among many others. App. 34, 154-159. The County acknowledged and substantial evidence was presented below that

County) rather than the former being a subset of the latter. [The District Courts statement (App. 34) that seasonal recreational camps were listed as a District 5 conditional use was incorrect (App. 160; compare Countys color-coded District 5 zoning map (R. 63-9) with Countys color-coded Seasonal Camp zoning map (R. 6314))].
11

App. 37. App. 27, (R. 61-6).

12

8 these permitted uses could have equal or greater impacts to the relevant land use interests at issue13. Following the decision by early 2004 of the Jaros Petitioners to develop the Bible camp, County zoning officials initially advised them during 2005 that rezoning of the camps land to District 5 or District 10 would be necessary. App. 38. After a series of legal proceedings before the Town and the County,14 the County on June 14, 2006 expressly informed the Petitioners that the rezoning petition filed in December, 200515 was unnecessary and that the camp could accomplish most or all of its stated objectives without any rezoning by using the Countys conditional use permit procedure. App. 201. As a result, the petition to rezone was formally denied by the full twenty-one person elected County Board at its August, 2006 meeting. App. 5, 37. The Petitioners then proceeded through the highly discretionary conditional use permit process in accordance with the Countys reasoning for the rezoning denial. That process required the submission
As admitted by the Respondent Countys Seventh Circuit Brief at p. 52 and at p. 53, footnote 9. See also, Petitioners expert report at R. 132, p. 249, County staff report at R. 63-51, p. 12; R. 77-5 at 22, 23; OCZSPO 9.22 and 9.24 at App. 154-159; and Business-zoned districts at Squash Lake (Appendix M), such evidence being summarized to the Seventh Circuit by Petitioners opening Appellants Brief at pp. 50-51 and 54-58 and by Appellants Reply Brief, pp. 42-48.
14 13

As noted at App. 4. App. 4, (R. 63-29).

15

9 of a site-specific design. App. 28-29, 162-163; R. 63-37. During Fall 2006, the camp selected an architectural and engineering team which developed that design.16 After the County began processing the application filed in December 2006, it required Petitioners, as a condition of its further processing, to procure significant site-specific permits from various departments of the state government including permits for grading within 1000 of a body of water, for construction and operation of a potable water well, for the design of a private on-site waste water sanitary system and for the operational discharge of that private on-site waste water sanitary system. App. 42. The camp incurred costs approaching $200,000 for architectural design, engineering services and successful procurement17 of those permits from the State of Wisconsin between Autumn 2006 and late 2008. App. 42; R. 144-5, pp. 13, 14, Schedule A, Columns O, Q-7. The design complied with the
The design is set forth at App. 26, 41 and as submitted at R. 6338, 63-44 and 63-45. Both the District Court and the Seventh Circuit drew inferences adverse to the non-moving Petitioners that the design represented a land development that was unusually large: sheer size (App. 62) and expansive (App. 12), however, the record, in fact, demonstrated that the camp was of only average size for year-round camps in Oneida County (District Court Doc. #63-53, at ECF page 19 of 27, clearly of average size for a Bible camp; #103-1; #103, point 3; Doc. #102, point 12). Instead of multiple stand-alone cabins for campers scattered about the land typical of both year-round and seasonal camps (see, OCZSPO, 9.25(C)(3) at App. 159 and footnote 9 at App. 33 at footnote 9, respectively), Eagle Coves design instead provided for a single, larger multi-function lodge structure. (App. 26).
17 16

Appendix. J; R. 77-23, 77-24, 77-25.

10 minimum acreage and dimension requirements applicable to Recreation Camps,18 a revised design submitted in May 2009 voluntarily reduced the height to the 35 height limit applicable only to single family residences,19 and the Countys staff informed the P&Z Committee favorably of the camps resolution of the staffs technical concerns. R. 110-4, p. 24. One element for the approval of a conditional use permit application is that the use must be compatible with . . . any adopted local plans for the area. OCZSPO 9.42(E)(3) at App. 29, 167. The conditional use permit was denied by the P&Z Committee at its July 29, 2009 meeting where its members reasoned that a rezoning of the land was necessary after all20 and that the Bible camp was not compatible with the Town of Woodboros adopted land use plan included in its adopted comprehensive plan. Transcript at R. 1104, pp. 63; see, App. 95, at 3. The Committee also made a finding that the Bible Camp would impair or diminish the use, value or enjoyment of neighboring properties while acknowledging there was nothing to base that finding upon. App. 175-176; see, App. 95, at 2.. The action was thereafter confirmed in a written decision. Appendix. F. The courts below concluded, in granting and affirming summary judgment for the Respondents, as the moving parties, that the foregoing facts, as a

18

App. 169. R. 63-46; R. 110-4, p. 24; see, App. 43 at fn. 13. Transcript at R. 110-4, pp. 71-72; see, App. 96-97, point 7.

19

20

11 matter of law, could not be found by a jury to constitute a substantial burden on the Petitioners religious exercise. App. 8, 18, 21. The Court of Appeals Opinion stated that although it was undisputed that Eagle Cove believes that their religion mandates that the Bible camp must be on the subject property . . . and that they must operate the Bible camp on a year-round basis, [i]t is not the land use regulations that create a substantial burden, but rather Eagle Coves insistence that the camp be placed on the subject property. App. 3, 12. The Court of Appeals also held that no substantial burden within the meaning of 42 U.S.C. 2000cc(a)(1) upon Petitioners religious exercise arose because the Petitioners had the opportunity to seek out other properties on which to build their camp elsewhere in the County other than the Town of Woodboro but chose not to do so. App. 13, 16. As noted above, the court acknowledged that forgoing the conversion of their own property to religious use in favor of such a search for other properties elsewhere in the County would have been contrary to their religious beliefs. Moreover, the court below failed to consider the substantial, uncontroverted evidence submitted by the Petitioners to the trial court that such a search would in fact likely have been futile, resulting in the same adverse decision by the County21 and failed to draw inferences in the Petitioners favor from such evidence which required the District Court to have denied, rather than granted, the Respondents summary

As set forth in detail at pp. 19-26 of Petitioners Seventh Circuit Reply Brief (7th Cir. doc. #33).

21

12 judgment motions on the substantial burden count. The Court of Appeals also held that even if the Petitioners religious exercise had been substantially burdened by a government, the County had a compelling interest within the meaning of 42 U.S.C. 2000cc(a)(1)(A) in preserving the rural and rustic character of the Town as well as the single-family development around Squash Lake.22 App. 14. Following an unsuccessful23 administrative appeal to the countys Board of Adjustment from the P&Z Committees denial of the conditional use permit application, the Petitioners commenced their civil action in the United States District Court for the Western District of Wisconsin on March 10, 2010. App 6. Count I of the Petitioners Amended Complaint raised the RLUIPA Total Exclusion claim presented by Question 3, supra. Count III raised the RLUIPA Substantial Burdens claim presented by Question 2, supra. Count IV raised the RLUIPA Equal Terms claim presented by Question 1, supra. App. 46. The

The court disregarded the finding of the State of Wisconsins Department of Natural Resources hearing officer that the Bible Camp was designed in a manner fully consistent with the states statutory requirement of preservation of scenic natural beauty and that riparian development at Squash Lake including an apartment building complex in the Town of Woodboro, the largest building of which was perched out in the open overlooking the lake (Appendix L), various parcels of land zoned Business (Appendix M)which the Opinion below incorrectly (R. 63-33) describes as being grandfathered in (App. 2, 3) and various homes with manicured lawns extending to the lake shore. App. 185.
23

22

Appendix E.

13 District Court had federal question jurisdiction under 28 U.S.C. 1331. The Town and County Respondents each filed motions for summary judgment on all counts. App. 20, 47. The Petitioners moved that same day for summary judgment on Count I, the RLUIPA Total Exclusion claim. Id. The District Court issued its summary judgment ruling on February 1, 2013. Appendix B. On February 5, 2013, judgment was entered for the Respondents. Appendix C. Petitioners filed their Notice of Appeal that same day. R. 157. The Court of Appeals affirmed the District Courts summary judgment ruling on October 30, 2013. Appendix A. The Petitioners petition for rehearing was filed on November 13, 2013 and was denied without comment by Order entered on December 10, 2013. Appendix D. ARGUMENT FOR ALLOWANCE OF THE WRIT This Honorable Court has previously considered aspects of the institutionalized persons provisions of the Religious Land Use and Institutionalized Persons Act of 2000 in Cutter v Wilkinson, 544 U.S. 709 (2005). In addition, the Court has just issued a writ of certiorari in Holt v. Hobbs, Docket No.13-6827 (Mar. 2014). However, this Court has yet to accept any case under the land use provisions of RLUIPA in the more than thirteen years since its enactment, despite considerable turmoil within the United States Courts of Appeals as to the proper understanding of the Equal Terms and Substantial Burdens provisions of the law. As explained below, this case also presents important questions of federal law under not only those two

14 provisions but also the Total Exclusion provision of RLUIPA, each of which was intended by Congress to protect the use of private lands for purposes of exercise of religion as guaranteed by the First and Fourteenth Amendments in face of abridgements thereof by units of local government exercising state land use regulatory powers. 1. THE COURT OF APPEALS HAS CONSTRUED THE EQUAL TERMS PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEALS. The text of RLUIPAs Equal Terms land use provision reads simply: (1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. 42 U.S.C. 2000cc(b)(1). From this Congressional text, a profound three-way split among the United States Courts of Appeals has arisen as noted in extensive scholarly literature24 and, with the instant case, that
See, e.g., Sarah Keeton Campbell, Restoring RLUIPAs Equal Terms Provision, 50 DUKE L.J. 1071, 1085-93 (2009); Tokufumi J. Noda, Incommensurable Uses: RLUIPAs Equal Terms Provision and Exclusionary Zoning in River of Life Kingdom Ministries v. Village of Hazel Crest, 52 B.C.L.REV. E. Supp. 71 (2011); Sean Foley, RLUIPAs Equal-Terms Provisions Troubling Definition of Equal: Why the Equal-Terms Provision Must Be Interpreted Narrowly, 60 KANSAS L. REV. 193 (2011); Thomas E. Raccuia,
24

15 split has now morphed into a four-way interpretation. The holding below is a unique interpretation of the provision that is contrary to any reasonable reading of its text adverse to its Congressional intent, and internally inconsistent with RLUIPAs rule of construction that its provisions shall be construed in favor of a broad protection of religious exercise . . . . The Court of Appeals adopted an extremely narrow view that the only non-religious assembly or institution to be compared with the religious assembly or institution at issue is the most comparable, in this case, secular recreation camps: While this zoning district permit certain religious and secular assemblies, recreational camps are prohibited outright, regardless of religious affiliation. It is clear that the OCZSPO does not treat religious land uses, in particular year-round Bible camps, less favorably than their secular counterparts. App. 17, emphasis added. In so doing, it followed the reasoning of the District Court which grounded its finding of no equal terms violation on the following:
RLUIPA and Exclusionary Zoning: Government Defendants Should Have the Burden of Persuasion in Equal Terms Cases, 80 FORDHAM L. REV. 1853 (2012); Andrew Cleves, Equal Terms: What Does It Mean and How Does It Work: Interpreting the Equal Terms Provision of the Religious Land Use and Institutionalized Persons Act (RLUIPA), 80 U. CINCINNATI L. REV. 209 (2012); Douglas Laycock & Luke W. Goodrich, RLUIPA: Necessary, Modest, and Under-Enforced, 39 FORDHAM URBAN L.J. 1021, 1060-66 (2012); Ryan M. Lore, When Religion and Land Use Regulations Collide: Interpreting the Application of RLUIPAs Equal Terms Provision, 46 U.C. DAVIS L. REV. 1339 (2013).

16 However, the most closely comparable usepurely recreational campsis also not allowed on the Subject Property. In that way, religious (Bible camps) and nonreligious (secular recreational camps) uses are treated the same under the Zoning Code. App. 68, emphasis added. In contrast, the Eleventh Circuit has not so narrowly limited this provision, interpreting the terms assembly and institution as possessing their ordinary or natural meanings. Midrash Sephardi Inc. v. Town of Surfside, 366 F.3d 1214, 1230 (11th Cir. 2004)). Any unequal treatment by a zoning ordinance between a religious assembly or institution and any nonreligious assembly or institution gives rise to a prima facie equal terms violation. Specifically, that court found that a private club constituted an assembly under the natural and ordinary understanding of that term. The Court did not look to whether any other assembly or institution was more closely comparable to the plaintiff religious assembly. Because the private club was an assembly permitted by the zoning ordinance in the zoning district from which the religious assembly was prohibited, the court found a prima facie equal terms violation to be present: Because we have concluded that private clubs, churches and synagogues fall under the umbrella of assembly or institution as those terms are used in RLUIPA, this differential treatment constitutes a violation of (b)(1) of RLUIPA. Id. at 1231.

17 The Eleventh Circuit then utilizes strict scrutiny analysis to permit the government to overcome the presumptive violation by demonstrating the existence of a compelling government interest and its utilization of the least restrictive means to accomplish that interest: Thus, a violation of (b)s equal treatment provision, consistent with the analysis employed in Lukumi, must undergo strict scrutiny. Id. at 1232. The Third Circuit, on the other hand, has ruled that the Equal Terms provision could be violated only if religious and secular assemblies or institutions both: (i) are similarly situated as to the regulatory purpose of the challenged ordinance; and (ii) the religious assembly or institution was treated less well than the similar situated secular assembly or institution by the regulation at issue. See, Lighthouse Institute for Evangelism v. City of Long Branch, 510 F.3d 253, 266 (3d Cir. 2007). In that case, the court held: There is no need, however, for the religious institution to show that there exists a secular comparator that performs the same function. For that reason, the District Court erred in focusing on Lighthouses inability to identify a secular comparator with a similar range of uses.25

This is precisely opposite of and in conflict with the Court of Appeals below. To wit, Petitioners here did not identify a secular comparator with the most similar range of usesa secular yearround recreational campthat was treated better than the

25

18 Id. at 266-7, emphasis added. We conclude instead that a religious plaintiff under the Equal Terms Provision must identify a better-treated secular comparator that is similarly situated in regard to the objectives of the challenged regulation. Id. at 268. In such case, the land use regulation would be subject to strict liability and automatically invalidated: We hold that RLUIPAs Equal Terms provision operates on a strict liability standard; strict scrutiny does not come into play. Id. at 269. Thus, the Third Circuit rejected the Eleventh Circuits broad definition of assemblies or institutions and the latters use of strict scrutiny to overcome a prima facie violation. In 2011, the Ninth Circuit adopted a formulation slightly different from that of the Third Circuit: The city violates the equal terms provision only when a church is treated on a less than equal basis with a secular comparator, similarly situated with respect to an accepted zoning criteria.

Petitioners religious year-round camp. Under the Eleventh Circuit that inability is irrelevant to a plaintiffs ability to make out an Equal Terms violation; under the Seventh Circuits ruling below, that inability was, in contrast, dispositive of there being no equal terms violation.

19 Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1173 (9th Cir. 2011). Thus, the Ninth Circuit substituted the concept of accepted zoning criteria for that of regulatory purpose employed by the Third Circuit.26 The Court of Appeals artificially narrow holding proved fatal to the Petitioners claim, as it only considered one assembly or institution (secular

Prior to the decision below, the Seventh Circuit had also used the accepted zoning criteria standard, holding that secular assemblies and institutions are comparable under the Equal Terms provision if they are similar with respect to the relevant regulatory criteria. River of Life Kingdom Ministries v. Village of Hazel Crest, 611 F.3d 367, 371 (7th Cir. 2010) (en banc); see also id. at 377 (Sykes, J.) (dissenting in favor of the Eleventh Circuits approach). Under this approach, an Equal Terms violation is demonstrated only if religious and secular assemblies or institutions both: (i) are similarly situated as to the accepted zoning criteria of the challenged ordinance; and (ii) were treated differently by the regulation: If a church and a community center, though different in many respects, do not differ with respect to any accepted zoning criterion, then an ordinance that allows one and forbids the other denies equality and violates the equal-terms provision. Id. at 371. Under this formulation, it was irrelevant to the presence or absence of an equal terms violation that another secular assembly or institution (e.g., secular year-round recreational camp) that was functionally comparable to the religious plaintiff (e.g., year-round religious camp) was treated equally. However, the court below interpreted one sentence (App. 16) within River of Life in a manner placing it at odds with all of the other Circuits. To wit, if the religious use and any one secular land use are treated the same from the standpoint of accepted zoning criteria, then the fact that that religious use and one or more other secular land uses are treated differently from the standpoint of accepted zoning criteria is, according to the Seventh Circuit, irrelevant to demonstrating an equal terms violation.

26

20 recreational camps that were also prohibited) and disregarded other permitted secular assemblies and institutions that could have equal or greater impacts as to either the regulatory purpose or the regulatory criteria. These included the numerous and wideranging uses listed at page 9, supra. As the District Court remarked, Petitioners submitted evidence demonstrating such equivalent impacts, including the Respondents own admissions, coupled with disparate treatment by the zoning code: [P]laintiffs principal challenge seems to be with the treatment of Bible camps in particular, arguing that Bible camps are not different from other, permissible secular uses with regard to any accepted criteria under the Zoning Code. App. 68. However, in the District Courts and Court of Appeals identical formulations, the fact that a wide variety of secular assembly and/or institutional uses that were similarly situated to a Bible camp either as to the regulatory criteria employed by the OCZSPO or the regulatory purpose of the OCZSPO were afforded more favorable treatment than the Petitioners religious assembly use was irrelevant for purposes of an Equal Terms claim and thus did not preclude the courts below from finding there to be no equal terms violation. Petitioners respectfully submit that this Honorable Court should resolve the split between the Circuits on this important question of federal law.

21 2. THE COURT OF APPEALS HAS CONSTRUED THE SUBSTANTIAL BURDENS PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH DECISIONS OF OTHER UNITED STATES COURTS OF APPEALS AND OF THIS COURT. RLUIPA itself contains no definition of substantial burden. As two learned commentators have recently observed, this Honorable Courts own jurisprudence on substantial burden does not provide detailed guidance in RLUIPA cases. RLUIPA: Necessary, Modest, and Under-enforced, Douglas Laycock and Luke W. Goodrich, 39 FORDHAM URBAN L. J. 1021, 1054 (2012). Early last year, another commentator observed that efforts by courts below to apply this Courts generalized substantial burden jurisprudence to RLUIPAs land use substantial burden provision have been ineffectual: The insurmountable problem with this approach, though, is that the Supreme Court has only articulated a very limited understanding of what counts as a substantial burdenand it has done so in context quite unlike the land use regulations at issue in RLUIPA. Abandoning the Use of Abstract Formulations in Interpreting RLUIPAs Substantial Burden Provision in Religious Land Use Cases, Robert M. Bernstein, 36 COLUMBIA J. OF LAW & THE ARTS 283, 289 (2013). As a result of lack of guidance as to the meaning and proper application of RLUIPAs land use

22 substantial burden provision, a serious split has developed among the Circuits. One extreme view--which is the least protective of religious liberties and which was formulated without regard to RLUIPAs own rule of construction in favor of the broadest possible protection of religious liberties in the use of private lands (42 U.S.C. 2000cc-3(g))--is the Seventh Circuits, as announced by a panel in Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752 (7th Cir. 2003) (C.L.U.B.). That panel held that a substantial burden is imposed by a land use regulation only when it: bears direct, primary, and fundamental responsibility for rendering religious exerciseincluding the use of real property for the purpose thereof within the regulated jurisdiction generallyeffectively impracticable. 342 F.3d at 761. This jaundiced view of substantial burden has since been severely criticized and become a minority formulation. Nevertheless, it was the standard employed by the panel below against Eagle Cove. Appendix A, p. 11. In contrast, other more recent and numerous cases articulate the principle that governments can impose a substantial burden on religious exercise without making the exercise either impossible or effectively impracticable. Such circuit courts interpreting the Substantial Burdens provision have found a substantial burden to exist where a government has rejected a land use application on arbitrary grounds, see, Westchester Day School v. Village of Mamaroneck, 504 F.3d 338, 350-352 (2d Cir. 2007), or where the

23 religious land applicant has been subjected to unreasonably delay, uncertainty, and expense during the permitting process. See, Guru Nanak Sikh Society of Yuba City v. County of Sutter, 456 F.3d 978, 992 (9th Cir. 2006). The panels decision therefore places it in conflict with the Second and Ninth Circuits. A. The Court of Appeals Holding that a Substantial Burden Can Arise Only When Government Action Renders Religious Exercise Impossible or Effectively Impracticable is Contrary to Other Circuit Courts. The Court of Appeals Opinion at App. 11 adopted the effectively impracticable test of C.L.U.B., supra, p. 22. As a result, the court viewed it determinative of the absence of substantial burden within the meaning of 42 U.S.C. 2000cc(a)(1) upon Petitioners religious exercise because the Petitioners had the opportunity to seek out other properties on which to build their camp elsewhere in the County other than the Town of Woodboro but chose not to do so.27 It was of no concern to the court, in so holding, that it was forcing the Petitioners to modify their behavior and violate the very religious beliefs which the court had already found them to sincerely hold. In contrast, the Ninth Circuit is concerned with the impact on religious exercise of that type of coercive governmental conduct::
27

As noted at p. 11, supra, the likely efficacy of that opportunity was the subject of a factual dispute, which the courts resolved in Respondents favor, notwithstanding the summary judgment ruling standard.

24 Further, the district courts dismissal of the Churchs assertion that there was no other property suitable to accommodate its religious use in the City is based, at least in part, on its improper scrutiny of the Churchs core religious beliefs. * * * The Church alleges that one of its core beliefs is that Sunday morning services are the local expression of . . . the congregation . . . com[ing] together to form one body with Jesus Christ as its head. The Churchs beliefs also require it to hold Sunday school and other ministries that take place at the same time as the traditional Sunday service. In spite of the Churchs allegations about its core beliefs, the district court accepted the Citys contention that the Church could continue to conduct three separate Sunday services or could acquire several smaller properties throughout the City and relocate some of its operations off site. The district courts flat rejection of the Churchs characterization of its core beliefs runs counter to the Supreme Courts admonition that while a court can arbiter the sincerity of an individuals religious beliefs, courts should not inquire into the truth or falsity of stated religious beliefs. United States v. Ballard, 322 U.S. 78, 8687, 64 S.Ct. 882, 88 L.Ed. 1148 (1944). International Church of Foursquare Gospel v. San Leandro, 673 F.3d 1059, 1069 (9th Cir. 2011). As a result, the Ninth Circuit has expressly identified its conflict with the Seventh Circuit: . . . Civil Liberties for Urban Believers was decided in a circuit that requires a government

25 action to render religious exercise . . . effectively impracticable in order to qualify as a substantial burden under RLUIPA. Id. at 761. This higher standard has been rejected in this circuit. See Guru Nanak, 456 F.3d at 989 n. 12. International Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1068-1069 (9th Cir. 2011). See also, McEachin v. McGuinnis, 357 F.3d 197, 202 n.4 (2nd Cir. 2004) ([A] substantial burden [is] a situation where the [government] puts substantial pressure on an adherent to modify his behavior and to violate his beliefs.); Washington v. Klem, 497 F.3d 272, 280 (3d Cir. 2007) (substantial burden, inter alia, where the government puts substantial pressure on an adherent to substantially modify his behavior and to violate his beliefs); Bethel World Outreach Ministries v. Montgomery Cnty. Council, 706 F.3d 548, 556 (4th Cir. 2013) (substantial burden where a government regulation puts substantial pressure on [a plaintiff] to modify [his] behavior); Moussazadeh v. Tex. Dept of Crim. Justice, 703 F.3d 781, 793 (5th Cir. 2012) (substantial burden exists if [government] truly pressures the adherent to significantly modify his religious behavior and significantly violate his religious beliefs) (citation and quotes omitted); Adkins v. Kaspar, 393 F.3d 559, 568-70 (5th Cir. 2004); Living Water Church of God v. Charter Twp. of Meridian, 258 Fed. Appx. 729, 737 (6th Cir. 2007) (evaluating substantial burden by asking whether government action place[s] substantial pressure on a religious institution to violate its religious beliefs); Warsoldier v. Woodford, 418 F.3d 989, 996 (9th Cir. 2005) (grooming policy substantially burdens religious exercise by put[ting] significant pressure on inmates

26 * * * to abandon their religious beliefs by cutting their hair); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004) (substantial burden can result from pressure that tends to force adherents to forego religious precepts or from pressure that mandates religious conduct); Gilardi v. U.S. Dept of Health & Human Servs., 733 F.3d 1208, 1216 (D.C. Cir. 2013) (A substantial burden is substantial pressure on an adherent to modify his behavior and to violate his beliefs.); Gladson v. Iowa Dept of Corr., 551 F.3d 825, 832 (8th Cir. 2009) ([A] substantial burden * * * must meaningfully curtail a persons ability to express adherence to his or her faith). In addition, the en banc Tenth Circuit has recently declined to follow the Seventh Circuits C.L.U.B. formulation adopted below. See Hobby Lobby Stores, Inc. v. Sebelius,723 F.3d 1114, fn. 18 (10th Cir. 2013). The Court of Appeals narrow view of substantial burden also led it to reject, as a matter of law in granting summary judgment to the Respondents, the possibility that the Respondent Countys course of conduct in its handling of the Petitioners site-specific conditional use permit (as recounted at pp. 9-11, supra) did give rise to a substantial burden. Consequently, the ruling below conflicts with numerous decisions from other circuits as noted at p. 21, supra.

27 B. The Court of Appeals Holding that Substantial Burdens on Religious Exercise Can Never Be Created by Neutral Land Use Regulations is Contrary to the Plain Text of RLUIPA and a Decision of the Fourth Circuit. In establishing the standard that RLUIPAs Substantial Burden provision does not apply to neutral land use regulation, the Court of Appeals wrote: Though they claim to seek the protections of RLUIPA, in reality Eagle Cove seeks nothing more than an exception from the OCZSPO on the basis of their religious beliefs. RLUIPA is meant to protect religious freedoms from impermissible land use regulations, it is not meant to allow religious exercise to circumvent facially-neutral zoning regulations. App. 13. This holding is directly contradicted by the text of RLUIPAs Substantial Burden provision: This subsection applies in any case in which: .... (B) the substantial burden affects, or removal of that substantial burden would affect commerce . . . among the several States28 . . . , even if the burden results from a rule of general applicability. . . . 42 U.S.C. 2000cc(a)(2), emphasis added.

28

As pleaded by 174 of Petitioners Amended Complaint. R. 16.

28 In addition, the holding by the Court of Appeals below places that court in direct conflict with the Fourth Circuit. In Bethel World Outreach Ministries v. Montgomery County, Md., 706 F.3d 548 (4th Cir. 2013), that court carefully differentiated religious claimants challenges to local government action abridging the free exercise of religion. The court noted that challenges brought under the First Amendment cannot prevail against a facially neutral law unless the claimant can demonstrate that the law targets the claimants religious beliefs or practices. 706 F.3d at 556. In contrast, a challenge to a facially neutral law under RLUIPAs substantial burden provision does not require proof of targeting. In reversing the District Courts holding that the plaintiff could not use RLUIPAs substantial burden provision to challenge a facially neutral law without proof of targeting, the Fourth Circuits Opinion held: The district court undoubtedly drew on this First Amendment principle in requiring Bethel to demonstrate that the County targeted it. But RLUIPAs history indicates that Congress intended that the statute do more than merely codify First Amendment jurisprudence. See Madison v. Riter, 355 F.3d 310, 314-315 (4th Cir. 2003) (explaining RLUIPAs history); see also Smith v. Ozmint, 578 F.3d 246, 251 (4th Cir. 2009) (finding that RLUIPA protects an institutionalized person from a substantial burden on his religious exercise even when the burden is imposed by a neutral and generally applicable policy). Moreover, RLUIPAs statutory language and structure reflect this intent.

29 . . . RLUIPAs substantial burden provision says nothing about targeting. Rather, it simply forbids government from imposing a substantial burden on religious exercise unless the Government demonstrates that it has used the least restrictive means of furthering a compelling governmental interest; that is, unless the governmental action satisfies strict scrutiny. 42 U.S.C. 2000cc(a)(1). 706 F.3d at 556, 557, emphasis added. C. The Court of Appeals Holding that Aesthetic Interests Constitute a Compelling Governmental Interest Is Contrary to the Holdings of this Court and Other Circuit Courts. Even if the Court of Appeals below had found the Petitioners religious exercise to have been substantially burdened by government regulation, the Court of Appeals held that the County had a compelling interest within the meaning of 42 U.S.C. 2000cc(a)(1)(A) in preserving the rural and rustic character of the Town as well as the single-family development around Squash Lake. In this regard, the Court below also wrote: a survey Woodboro took . . . found the majority of the residents desired to maintain the towns rural and rustic character. App. 2. Woodboro recommended that the County deny the petition [for rezoning]. It found that the recreational camp was not consistent with the

30 goals of maintaining the rural and rustic character of Woodboro . . . App. 4. Even though the record29 demonstrated that the riparian lands at Squash Lake had long since had their rural and rustic character marred by apartment buildings,30 manicured lawns,31 and extensive shoreland zoned for Business32 and that Eagle Cove Camps development would not harm scenic natural beauty,33 the Court below contravened established case law and created a conflict both with prior precedents of this Court and among the Circuits that reject aesthetic considerations as being compelling. Metromedia v. City of San Diego, 453 U.S. 490, 511-12 (1981) (traffic safety and aesthetics are not compelling governmental interest justifying content-based restriction on speech); City of Ladue v. Gilleo, 512 U.S. 43, 54 (1994) (reducing visual clutter not compelling); Whitton v. City of Gladstone, 54 F.3d 140, 1408 (8th Cir. 1995) (. . . a municipalitys asserted interests in traffic safety and aesthetics, while significant, have never been held to be compelling.); Neighborhood Enterprises v. City of St. Louis, 644 F.3d 728, 737-38 (8th Cir. 2011); National Advertising Co. v. City of Orange, 861 F.2d 246, 249 (9th Cir. 1988); International
Appendix J (WDNR Findings); Appendix L (Color Photo of apartment building at Squash Lake).
30 29

Appendix I. App. 185. Appendix M. App. 185.

31

32

33

31 Church of Foursquare Gospel v. City of San Leandro, 673 F.3d 1059, 1070-1071 (9th Cir. 2011) (rejecting interest in preservation of character of lands); Dimmitt v. City of Clearwater, 985 F.2d 1565, 1572 (11th Cir. 1993). 3. THE COURT OF APPEALS HAS CONSTRUED THE TOTAL EXCLUSION PROVISION OF RLUIPAS RELIGIOUS LAND USE PROTECTIONS IN A MANNER THAT CONFLICTS WITH THIS COURTS RULING IN SCHAD V. BOROUGH OF MOUNT EPHRAIM AND HAS DECIDED TWO IMPORTANT QUESTIONS OF FEDERAL LAW WITH RESPECT TO THE SAME TOTAL EXCLUSION PROVISION THAT HAVE NOT BEEN SETTLED, BUT SHOULD BE SETTLED, BY THIS COURT. A. The Court Below Interpreted RLUIPAs Total Exclusion Provision in a Manner That Both Conflicts with Schad v. Borough of Mount Ephraim and Deprives Whole Categories of Religious Assemblies from Important Federal Protection Against Being Totally Excluded from Entire Jurisdictions. The Court of Appeals adopted the District Courts holding upon summary judgment that unless every conceivable category of religious land use is excluded from a jurisdiction, there can be no violation of

32 RLUIPAs Total Exclusion provision.34 Therefore, the courts below held that the total exclusion from the Town of Woodboro of all year-round religious camps35 did not contravene RLUIPAs total exclusion provision. 42 U.S.C. 2000(b)(3)(A). According to the Court of Appeals, if any one type of religious assembly use, such as at a religious shrine,36 is allowed somewhere within a jurisdiction, RLUIPAs Total Exclusion is not transgressed even if all other forms of religious assembly land use, including houses of worship, religious schools, and religious camps, are totally prohibited. However, the legislative history to RLUIPAs Total Exclusion provision clearly demonstrates that Congress derived the statutes Total Exclusion provision from this Courts decision in Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981).37 In Schad, this Court held that a government violated the First Amendments protection of freedom of expression by totally excluding
Eagle Cove could construct a religious church or school on the subject property. This is hardly complete and total exclusion. App. 11. See footnote 10, regarding seasonal camps. Additionally, even if seasonal religious camps were instead treated by a zoning code as a temporal subset of year-round religious camps, total exclusion of religious camps, applying RLUIPAs rule of broad construction, would still be present for approximately nine consecutive months of each annual cycle. An administrative review land use category contained in the OCZSPO for certain Forestry Districts. App. 33. See Joint Statement of Senators Hatch and Kennedy, 146 CONG. REC. S7774, S7776 (daily ed. July 27, 2000).
37 36 35 34

33 one particular type of activity protected by the First Amendment--namely, live entertainment--from the entire jurisdiction. That is, not all free speech was required to be banned in order for impermissible total exclusion from a jurisdiction to have occurred. Accordingly, the Seventh Circuits construction of the Total Exclusion provision in this regard not only is contrary to both this Courts decision in Schad and plainly expressed Congressional intent but also violates RLUIPAs own internal rule of construction (42 U.S.C. 2000cc-3(g)) in favor of the broadest possible protection of religious liberties consistent with the Constitution. However, this Court has not yet settled but should settle the scope of the phrase religious assemblies as employed by the Total Exclusion provision to mean any form of religious assembly, in order to avoid such absurd results as houses of worship that could be banned outright in New York City so long as parochial schools were permitted. Under the Seventh Circuits reasoning, such prohibition would be permissible without violating RLUIPAs Total Exclusion provision.

34 B. The Court Below Interpreted RLUIPAs Total Exclusion Provision in a Manner That Permits Governments of Superior Jurisdictions to Totally Exclude All Types of Religious Assemblies from All But One of Its Inferior Jurisdictions, Thereby Presenting an Important Question of Federal Law Concerning the Scope of RLUIPAs Protection of the Free Exercise of Religion. The Court of Appeals below also determined that the phrase from a jurisdiction within the Total Exclusion provision had a narrow, rather than natural and broad (as required by section 2000cc-3(g)) meaning of the statutory text. App. 10, 11. To wit, and as noted in Part A, supra, the decision of the Court of Appeals below admits that all religious assemblies of the type sought by Petitionersnamely, year-round religious campshad been totally excluded from a jurisdiction, namely, the Town of Woodboro,38 a body politic having its own governmental powers including taxing and land use regulatory powers. But the court then disregarded the jurisdiction of Woodboro altogether (on the theory it did not exercise zoning jurisdiction39), instead holding that only if all types

A rural, thirty-seven square mile jurisdiction containing 21,857 acres of land inhabited by approximately 756 residents. App. 22. As argued above, whether a government exercises its zoning power is not relevant to a total exclusion violation, given RLUIPAs text of that provision. However, Woodboro did, in fact, control the exercise of zoning power over the Petitioners land in multiple ways. First, the Countys zoning ordinance was required to
39

38

35 of religious assembly uses were excluded from the entire County of Oneida would RLUIPAs Total Exclusion provision be violated. The court below, in stating it is clear that the County, not Woodboro, exercises jurisdiction,40 rewrote the Total Exclusion provision to instead read: No government shall impose or implement a land use regulation that(A) totally excludes religious assemblies from the jurisdiction that exercises zoning authority. Such a construction is impermissible for three reasons: First, it contradicts the plain text of the Total Exclusion provision which uses the indefinite article a within the phrase from a jurisdiction where a must mean any. See, e.g., Lee v. Weisman, 505 U.S. 577, 614 n.2 (1992) (Souter, J., concurring) ([T]he indefinite article before the word establishment is better seen as evidence that the [Establishment] Clause forbids any kind of establishment.).

incorporate Woodboros master plan which included its land use plan. WIS. STAT. 59.69(1). Second, the OCZSPO did not apply in non-shoreland areas unless Woodboro chose to adopt it. WIS. STAT. 59.69(5)(c). Third, Woodboro possessed veto power over that Countys action to grant a rezone of a particular property. WIS. STAT. 59.69(5)(e)3., 3m., and 6. Fourth, Woodboro possessed a veto power over the Countys decision to grant an Administrative Review or Conditional Use Permit by determining the content of its land use plan. OCZSPO, 9.42(E)(3) at App. 167.
40

App. 11.

36 Second, it violates RLUIPAs own internal rule of broad construction in favor of the protection of religious exercise (42 U.S.C. 2000cc-3(g)). Third, it is contradicted by the legislative history of RLUIPA.41 The meaning of the term a jurisdiction and the phrase from a jurisdiction as used within RLUIPAs Total Exclusion provision has not been, but should be, settled by this Court in order to resolve the important federal question as to whether a unit of government having wider geographic jurisdiction can legislate in a manner that totally excludes all religious assemblies from all but one of the smaller geographic jurisdictions situated within its territory (e.g., can a State government directly exercising zoning power42 totally exclude all religious assemblies from all but one of its subordinate jurisdictions including counties, cities, towns and/or villages; and can a county government, as here, exercising zoning power totally exclude all religious assemblies from all but one town or village within its territory?).

In enacting RLUIPAs Total Exclusion provision, Congress deliberately changed to the use of the indefinite article a from the definite articles the and that which had been employed in the predecessor 1998 and 1999 draft versions of the Total Exclusion legislation (RLPA of 1998, H.R. 4019, 105th Cong., (3)(b)(1)(B); RLPA, H.R. 1691, 106th Cong., (3)(b)(D), as quoted in Petitioners Seventh Circuit Reply Brief (7th Cir. Doc. 33) at p. 11. As Hawaiis state government did in Hale O Kaula v. Maui Planning Commn, 229 F. Supp. 2d 1056, 1065 (D. Haw. 2002).
42

41

37 In the instant case, Respondent Oneida County consists of greater than 700,000 acres of land of which approximately 22,000, holding a population of fewer than 800 residents, lie in the Town of Woodboro. App. 22. Within the County also lie nineteen other towns and the incorporated City of Rhinelander.43 App. 22, 27. The holding of the Court of Appeals is that RLUIPAs total exclusion provision is not transgressed if the County totally excludes all religious assembly uses from all but one of the nineteen towns lying within the County and permits only one type of religious assembly use (e.g., assembly at a religious shrine) in the twentieth town. The District Court, whose total exclusion interpretation the Court of Appeals fully adopted, admitted this result would pertain from its interpretation of the statute.44 App. 52. Under this reasoning, a state government exercising direct zoning authority over its entire jurisdiction could totally exclude all religious assembly uses from the entire state except for just one subordinate jurisdiction, allow just one type of religious assembly use (e.g., assembly at religious shrines) in that one subordinate jurisdiction, and yet be found not to have transgressed RLUIPAs total exclusion provision, even though houses of worship and religious educational institutions were banned from the entire state.

Wisconsin county governments do not possess zoning authority over incorporated cities and incorporated villages. WIS. STAT. 59.69(4). In formulating its decision, the District Court incorrectly imputed to Petitioners the view that a mere zoning district constituted a jurisdiction. App. 51; Petitioners opening Seventh Circuit Appellants Brief, pp. 23, 24.
44

43

38 Therefore, the common holding of both courts below poses an important question of federal law as to whether RLUIPAs Total Exclusion provision affords virtually no protection to the exercise of religious liberties by religious assemblies whenever a superior level of state government exercises zoning power over a subordinate jurisdiction, or whether instead that provision affords a more robust protection as commanded by RLUIPAs own rule of construction (42 U.S.C. 2000cc-3(g)), and by Schad from which that Total Exclusion provision was derived. CONCLUSION As set forth herein, the decision below has created conflicts with prior decisions of this Court and between the circuits involving important questions of federal law that concern the extent of RLUIPAs protection of free exercise of religion. These conflicts and important questions of law call for resolution by this Honorable Court. Accordingly, the Court should grant a writ of certiorari to review and vacate the judgment of the Court of Appeals, remand the matter to the district court for further consideration of Petitioners claims against Respondents and with such other relief as is fair and just in the circumstances.

39 Respectfully submitted, Arthur G. Jaros, Jr. Counsel of Record The Law Office of Arthur G. Jaros, Jr. 1200 Harger Road, #830 Oak Brook, IL 60523 (630) 574-0525 agjlaw@earthlink.net Roman P. Storzer Robert L. Greene Of Counsel Storzer & Greene, P.L.L.C. 11 Broadway, Suite 615 New York, NY 10004 (212) 943-4343 storzer@storzerandgreene.com greene@storzerandgreene.com Counsel for Petitioners

APPENDIX

App. i APPENDIX TABLE OF CONTENTS Appendix A Opinion in the United States Court of Appeals for the Seventh Circuit (October 30, 2013) . . . . . . . . . . . . App. 1 Appendix B Opinion and Order in the United States District Court for the Western District of Wisconsin (February 1, 2013) . . . . . . . . . . . App. 19 Appendix C Judgment in the United States District Court for the Western District of Wisconsin (February 5, 2013) . . . . . . . . . . . App. 76 Appendix D Order Denying Petition for Rehearing and Petition for Rehearing En Banc in the United States Court of Appeals for the Seventh Circuit (December 10, 2013) . . . . . . . . . App. 78 Appendix E Decision of the Oneida County Board of Adjustment [R.63-54] (February 11, 2010) . . . . . . . . . . App. 80 Appendix F Decision of the Oneida County Planning & Zoning Committee [R.6352] (August 19, 2009) . . . . . . . . . . . . App. 91 Appendix G Constitutional, Statutory, and Regulatory Provisions Involved . . . . . . . . . . . . . . . . . . App. 102

App. ii Appendix H Oneida County Zoning and Shoreland Protection Ordinance Excerpts [R.631; 78] . . . . . . . . . . . . . . . . . . . . . App. 145 Appendix I Oneida County Planning & Zoning Committee: Excerpts from Transcript of Conditional Use Permit Application Deliberative Session [R.110-4] (July 29, 2009) . . . . . . . . . . . . . App. 170 Appendix J Wisconsin Department of Natural Resources Grading Permit [R.77-49] (November 16, 2007) . . . . . . . . App. 178 Appendix K Minutes of Oneida County Planning & Zoning Committee Meeting [R.63-31] (June 14, 2006) . . . . . . . . . . . . . App. 189 Appendix L Color Photograph of Apartment Building Overlooking Squash Lake [R.77-53] . . . . . . . . . . . . . . . . . . App. 210 Appendix M Zoning Map of Riparian Lands at Squash Lake [R.63-21] . . . . . . App. 211

App. 1

APPENDIX A IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT No. 13-1274 [Filed October 30, 2013] ____________________________________________ EAGLE COVE CAMP & CONFERENCE ) CENTER, INC., et al., ) Plaintiffs-Appellants, ) ) v. ) ) TOWN OF WOODBORO, WISCONSIN, ) ONEIDA COUNTY, WISCONSIN, AND ) ) ONEIDA COUNTY BOARD OF ADJUSTMENT, Defendants-Appellees. ) ____________________________________________ ) Appeal from the United States District Court for the Western District of Wisconsin. No. 3:10-cv-00118-wmc William M. Conley, Chief Judge. ARGUED SEPTEMBER 10, 2013 DECIDED OCTOBER 30, 2013 Before KANNE, WILLIAMS, and TINDER, Circuit Judges. KANNE, Circuit Judge. Eagle Cove Camp & Conference Center, Inc. (Eagle Cove) appeals from the district courts entry of summary judgment in favor of the Town of Woodboro, (Woodboro) Oneida County

App. 2 and the Oneida County Board of Adjusters (collectively the County). Eagle Cove alleged that Woodboro and the Countys land use regulations, which prohibit them from running a year-round Bible camp on residentially zoned property, violated the Religious Land Use and Institutionalized Persons Act (RLUIPA), the First and Fourteenth Amendments of the United States Constitution, and the Wisconsin Constitution. Eagle Cove also sought state certiorari review under Wisconsin Statute 59.694(10). For the reasons set forth below, we affirm the decision of the district court. I. BACKGROUND A. The Town of Woodboro and Oneida County Woodboro comprises approximately 750 residents and about 21,857 acres of land. Oneida County has 708,751 acres of land. Squash Lake is partially located in Woodboro. Pursuant to Wisconsin Statute 60.62(1), Woodboro adopted a Land Use Plan in 1998, which seeks to encourage low density single family residential development for its lake- and river-front properties. (R. 6320 at 9.) The plan incorporated a survey Woodboro took that found the majority of the residents desired to maintain the towns rural and rustic character. In 2009, Woodboro adopted a Comprehensive Plan in accordance with Wisconsin Statute 66.1001 that incorporates the aforementioned language. The zoning around Squash Lake reflects the goals set forth in the plans and the survey. There are one hundred seventy-seven parcels of real estate on Squash Lake, and all but seven are zoned for single-family uses. The seven parcels that are not zoned for

App. 3 single-family use are zoned for business and were grandfathered into the zoning plan as pre-existing uses during the initial zoning in 1976. On May 8, 2001, Woodboro voluntarily subjected itself to the Oneida County Zoning and Shoreland Protection Ordinance (OCZSPO), which establishes zoning districts throughout the County. Towns must elect to be subordinate to the OCZSPOs provisions. In doing so, they relinquish zoning authority to the County. According to the OCZSPO, religious land uses are permitted throughout the County and Woodboro. Year-round recreational and seasonal camps are permitted on thirty-six and seventy-two percent of the County, respectively. In addition, churches and religious schools are allowed on sixty percent of the land in the County. Churches and schools are permitted on nearly forty-three percent of the land in Woodboro and campgrounds (religious or secular) on approximately fifty-seven percent. B. The Proposed Bible Camp Eagle Cove sought to construct a Bible camp on thirty-four acres of property that they own on Squash Lake in Woodboro. Eagle Cove believes that their religion mandates that the Bible camp must be on the subject property. Eagle Cove also believes that they must operate the Bible camp on a year-round basis. Neither of these beliefs is in dispute. The subject propertys eastern parcels are zoned Single Family Residential and the western parcels are zoned Residential and Farming. As the OCZSPO states, The purpose of the Single Family Residential

App. 4 District is to provide an area of quiet seclusion for families. This is the Countys most restrictive residential zoning classification. Motor vehicle traffic should be infrequent and people few. (R. 631 at 12.) The land was not specifically purchased for the construction of the proposed camp and has been owned by the same family since 1942. C. Petition for Rezoning and Conditional Use Permit On December 13, 2005, Eagle Cove filed a petition with Oneida County to rezone the subject property to a Recreational zoning district. The general reason provided for the rezoning was to permit construction of a Bible camp. The OCZSPO does not permit year-round recreational camps in Single Family Residential zoning districts. The County sent a copy of the rezone petition to Woodboro for its consideration on the matter. Beginning in February 2006, Woodboro held a series of meetings on the rezoning petition. After much discussion, Woodboro recommended that the County deny the petition. It found that the recreational camp was not consistent with the goals of maintaining the rural and rustic character of Woodboro and would conflict with the existing single-family development surrounding Squash Lake. Following this recommendation, the County held several meetings and hearings regarding the zoning petition. The County denied the rezoning petition on the grounds that it would conflict with the majority single-family usage on Squash Lake and land use regulations set forth in the Woodboro Land Use Plan.

App. 5 In doing so, the County considered the implications of RLUIPA and whether a denial would hinder Eagle Coves right to exercise their religion on the subject property. It found that a religious school or church could be constructed under existing zoning, that Eagle Cove could achieve its goals without rezoning by applying for a conditional use permit, and that the proposed Bible camp directly conflicted with the Single Family Residential zoning around Squash Lake. By resolution adopted on August 15, 2006, the County accepted the recommendation of the County Zoning Committee and denied the rezone petition. In 2008, Eagle Cove sought to obtain a conditional use permit (CUP) to construct its proposed Bible camp on the subject property. If permitted, the CUP would allow Eagle Cove to construct its Bible camp without requiring rezoning of the subject property. Eagle Cove attached an Overall Site Plan with the application, which included plans for a lodge in excess of 106,000 square feet. The proposed Bible camp would have a maximum capacity of 348 campers and also accommodate 60 people in outdoor camping sites. Woodboro recommended that the County deny the CUP application. The Zoning Committee issued a staff report detailing its reasons for denying the application. Once again, the report found that the proposed Bible camp did not conform to the zoning goals in the district. It also stated that the proposed use was incompatible with the single-family residential use of adjacent land to the subject property, the purposes and nature of the Single Family Residential district, and Woodboros 2009 Comprehensive Plan. The County Zoning Committee agreed with the report and denied the CUP

App. 6 application. Finally, Eagle Cove appealed to the Oneida County Board of Adjusters, which also found that the proposed use was impermissible. D. District Court Proceedings On March 10, 2010, Eagle Cove filed an action in the United States District Court for the Western District of Wisconsin. They filed an amended complaint on April 27, 2010, and asserted that the land use regulations by Woodboro and Oneida County deprived Eagle Cove of rights set forth under various provisions in RLUIPA, the First and Fourteenth Amendments of the United States Constitution, the Americans with Disabilities Act, the Rehabilitation Act, and the Wisconsin Constitution. They also petitioned for a writ of certiorarito the Wisconsin Supreme Court. All parties moved for summary judgment. The district court granted summary judgment for the County and Woodboro on all counts.1 The district court found that the RLUIPA total exclusion claim lacked merit as neither the County nor the Town prohibited religious assemblies in their jurisdictions. It found that Eagle Cove could use their land for religious assembly, albeit not in the form of a year-round Bible camp. Citing our opinion in Vision Church v. Village of Long Grove, the district court held that the total exclusion provision of RLUIPA requires the complete and total exclusion of activity protected by the First Amendment, not just prohibition of a certain
1

We need not address the Rehabilitation Act or the Americans with Disabilities Act claims as they were not appealed by Eagle Cove.

App. 7 type of religious activity. 468 F.3d 975, 989-90 (7th Cir. 2007). The district court went on to disagree with Eagle Coves contention that Woodboro itself exercises jurisdiction over the land use regulations within its borders, finding that Woodboro has only an advisory role in the overall process and that it is the County that exercises jurisdiction over the land use regulations on the subject property. In considering Eagle Coves unreasonable limitation claim under RLUIPA, the district court found that Eagle Coves proposed use of implementing a year-round Bible camp would be permitted in thirty-six percent of Oneida County and that seasonal recreational camps would be permitted on seventy-two percent of the County. Additionally,Woodboros planning scheme allows for seasonal recreational camps on roughly fifty-seven percent of its land. The County and Woodboro did not unreasonably limit religious assemblies in their respective jurisdictions, but rather, Eagle Coves insistence on locating the year-round camp on the subject property impeded the exercise of their religious beliefs. The district court next addressed Eagle Coves RLUIPA substantial burden claim. Despite the fact that Eagle Cove has spent considerable amounts of time and resources on the various permits described above, the district court found that this did not entitle them to relief under the substantial burden provision of RLUIPA. It held that simply having a religious purpose does not prevent the County from placing reasonable constraints on the proposed camp. Citing Civil Liberties for Urban Believers v. City of Chicago, 342 F.3d 752, 761 (7th Cir. 2003) (hereinafter CLUB),

App. 8 the district court emphasized that, to qualify under this provision, the burden placed on religion must indeed be substantial. To find otherwise would allow even the slightest of obstacles to trigger RLUIPAs substantial burden provision. Eagle Cove specifically rejected alternative sites and methods for exercising their religion. As the district court observed, the scope of Eagle Coves vision, not the OCZSPO, hindered their religious exercise. The district court, using the same reasoning as in its substantial burden analysis, found that the free exercise claim under the First Amendment and the claim under the Wisconsin Constitution Article 1, 18 also failed. Eagle Cove filed this timely appeal. II. ANALYSIS We review the district courts grant of summary judgment de novo. See Hottenroth v. Village of Slinger, 388 F.3d 1015, 1027 (7th Cir. 2006). To determine whether summary judgment is appropriate, all conflicting evidence and reasonable inferences drawn from it are construed in favor of Eagle Cove. Grochocinski v. Mayer Brown Rowe & Maw, LLP, 719 F.3d 785, 794 (7th Cir. 2013). Summary judgment is proper if, in considering all evidence in favor of the non-moving party, we find that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 32223 (1986).

App. 9 A. Total Exclusion Claim Eagle Cove argues that Woodboro has violated RLUIPAs total exclusion provision, which prohibits governmental land use regulations from totally excluding religious assemblies from a jurisdiction. 42 U.S.C. 2000cc(b)(3)(A). Eagle Coves total exclusion argument is predicated, and in fact depends, on the assumption that Woodboro has jurisdiction to implement land use regulations on the subject property. This stems from the fact that year-round recreational camps are permitted throughout the County (rendering Eagle Coves total exclusion claim obsolete), but not allowed within Woodboros borders. Jurisdiction generally describes any authority over a certain area or certain persons Smaller geographic areas, such as counties or cities, are separate jurisdictions to the extent that they have powers independent of the federal and state governments.(Appellants Br. at 2223), citing Wests Encyclopedia of American Law (2011). Blacks Law Dictionary defines jurisdiction as: A geographic area within which political or judicial authority may be exercised. 867 (9th ed. 2009). Neither of these definitions yields any support for Eagle Coves contention that Woodboro retains jurisdiction over land use regulations within the town. Jurisdiction requires that a municipality is able to exercise control or authority over a designated area. Indeed, Woodboro does retain jurisdiction on numerous matters of local governance that are within its control. The town board can, for example, regulate bowling centers, dance halls, and roadhouses maintained in commercial facilities. Wisconsin Statute 60.23(10). It

App. 10 can dispose of dead animals or contract with a private disposal facility to do the same. Wisconsin Statute 60.23(20). Town meetings may be called to regulate the appropriation of money. Wisconsin Statute 60.10(1)(3). In this case, Woodboro was able to exercise its jurisdiction in approving the OCZSPO. A county ordinance enacted under this section shall not be effective in any town until it has been approved by the town board The ordinance shall supersede any prior town ordinance in conflict therewith or which is concerned with zoning[.] Wisconsin Statute 56.69(5)(c). Woodboro chose to be subordinate to Oneidas zoning ordinance, and thereby relinquished its jurisdiction over land use regulations to the County. Eagle Cove argues that Woodboros implementation of its Land Use and Comprehensive Plans is proof that the town maintains sufficient control over the zoning regulations. The record suggests otherwise. Though Woodboro created the aforementioned plans, these were not binding on the Countys ultimate zoning decisions. Whether or not the town approves of a change in zoning is merely one of the factors considered by the County in making its determination. Woodboro serves a limited, consultative role in determining the towns zoning regulations. The weight given to Woodboros recommendation is at the discretion of the County. The town board itself acknowledged its advisory role in reviewing Eagle Coves CUP application: [T]he Town of Woodboro hereby provides an advisory recommendation to the Oneida County Planning and Zoning Department that the [CUP] Application for Eagle Cove be denied. (R.

App. 11 6248 at 2.) (emphasis added). Thus, it is clear that the County, not Woodboro, exercises jurisdiction. For this reason, Eagle Coves total exclusion claim must fail. There is ample evidence in the record to suggest that operating a year-round Bible camp would be possible in many parts of Oneida County. See supra Part I.A. In Vision Church, we held that the total exclusion provision of RLUIPA prohibits only the complete and total exclusion of activity or expression protected by the First Amendment. 468 F.3d at 989. It is undisputed that Eagle Cove could construct a year-round Bible camp on thirty-six percent of the land in Oneida County. It is further undisputed that Eagle Cove could construct a religious church or school on the subject property. This is hardly a complete and total exclusion. A. Substantial Burden and Free Exercise Claims Eagle Cove also seeks relief under the substantial burden provision of RLUIPA, which requires land use restrictions on religious assemblies be in furtherance of a compelling governmental interest and use the least restrictive means possible to achieve that interest. 42 U.S.C. 2000cc(a). Eagle Cove must demonstrate that the zoning in Oneida County imposes a substantial burden on the exercise of religious rights and that the County did not have a compelling reason in creating the burden. A substantial burden under RLUIPA is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise effectively impracticable. CLUB, 342 F.3d at 761. The burden must be truly substantial, to hold otherwise

App. 12 would permit religious organizations to supplant even facially-neutral zoning restrictions under the auspices of religious freedom. See Petra Presbyterian Church v. Village of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (Unless the requirement of substantial burden is taken seriously, the difficulty of proving a compelling governmental interest will free religious organizations from zoning restrictions of any kind.) There are numerous locations within Oneida County for Eagle Cove to place its Bible camp. See supra Part I.A. Eagle Cove concedes that there are four tracts of land, out of the ten put forth by the County, which would be suitable for their proposed camp. (Appellants Br. at 33.) Despite this admission, Eagle Cove has insisted from the onset of this litigation that the camp must be built on the subject property. In fact, they have never even looked into operating the Bible camp on any other land in Oneida County, though several properties in the County that could have supported a year-round camp have been sold since 2006. It is not the land use regulations that create a substantial burden, but rather Eagle Coves insistence that the expansive, year-round Bible camp be placed on the subject property. See Petra, 489 F.3d at 851 (When there is plenty of land on which religious organizations can build churches in a community, the fact that they are not permitted to build everywhere does not create a substantial burden.). The OCZSPO itself applies a neutral land use regulation by zoning the area around Squash Lake, including the subject property, as a Single Family Residential district. The zoning occurred before Eagle Cove expressed any interest in constructing a Bible

App. 13 camp. Eagle Cove was given the opportunity to seek rezoning and a CUP application, both of which were denied. They also had the opportunity to seek out other properties on which to build their camp, but chose not to do so. Rather, Eagle Cove brought this suit. Though they claim to seek the protections of RLUIPA, in reality Eagle Cove seeks nothing more than an exception from the OCZSPO on the basis of their religious beliefs. RLUIPA is meant to protect religious freedoms from impermissible land use regulations, it is not meant to allow religious exercise to circumvent facially-neutral zoning regulations. Eagle Cove is not requesting relief from an unjust law or ordinance implemented by the County that inhibits their religious activity; rather, they seek special treatment on the basis of their religious purpose. See CLUB, 342 F. 3d at 762 ([N]o such free pass for religious land uses masquerades among the legitimate protections RLUIPA affords to religious exercise). Eagle Cove also maintains that Oneida County and the Town of Woodboro caused considerable delay, uncertainty, and expense in the execution of the rezoning application they submitted by leading them to believe that their permits would be granted. They rely on our holding in Sts. Constantine and Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895, 901 (7th Cir. 2005), which found a substantial burden under RLUIPA where there was considerable delay, uncertainty and expense. We held that [i]f a land-use decision imposes a substantial burden on religious exercise and the decision maker cannot justify it, the inference arises that hostility to religion, or more likely to a particular sect, influenced the decision. Id. at 900. In New Berlin, however, there

App. 14 were indicia of bad faith by the City that led the Court to find no compelling governmental interest that the City could put forth to justify its substantial burden on the Church. Id. at 899 (The repeated legal errors by the Citys officials casts doubt on their good faith). That is not the case here. First, the fact that Eagle Cove has spent considerable time and money on various applications for rezoning does not constitute, prima facie, a substantial burden. See, e.g., CLUB, 342 F.3d at 761 (That [Appellants] expended considerable time and money does not entitle them to relief under RLUIPAs substantial burden provision). Further, it is clear from the record that the Town and County maintained their position throughout the rezoning application process that, while religious exercise would be allowed in the form of a church or school on the subject property, they would not permit the construction of a year-round recreational camp. The County had a compelling interest in preserving the rural and rustic character of the Town as well as the single-family development around Squash Lake. To do this, it zoned the area around Squash Lake for single family purposes four years before Eagle Cove first sought to build the camp. The zoning regulations do not seek to inhibit Eagle Coves religious activity; they merely encourage an area of quiet seclusion for families around Squash Lake. Eagle Coves Free Exercise claim must fail for the same reasons. We have previously noted that both the Free Exercise Clause and RLUIPA provide that, if a facially-neutral law or land use regulation imposes a substantial burden on religion, it is subject to strict

App. 15 scrutiny. Vision Church, 468 F.3d at 996. As in Vision Church, we apply our substantial burden analysis to deny Eagle Coves Free Exercise claim. Id.(Given the similarities between RLUIPA 2(a)(1) and First Amendment jurisprudence, we collapse [appellants] claims for the purpose of this analysis; this approach seems most consistent with post-RLUIPA case law). C. Unreasonable Limitations Claim Eagle Cove also contends that there is at least a genuine issue of material fact as to whether reasonable opportunities exist to build the proposed Bible camp within the County. Reasonableness is determined in light of all the facts, including the actual availability of land and the economics of religious organizations. Vision Church, 468 F.3d at 990; see also Bethel World Outreach Ministries v. Montgomery County Council, 706 F.3d 548, 560 (4th Cir. 2013) (RLUIPAs unreasonable limitation provision prevents government from adopting policies that make it difficult for religious institutions to locate anywhere within the jurisdiction). It cannot be said that the land use regulations in Oneida County unreasonably limit[] religious assemblies, institutions, or structures[.] 42 U.S.C. 2000cc(b)(3)(B). The evidence clearly suggests otherwise. The OCZSPO has a neutral purpose that incorporates Woodboros Comprehensive and Land Use Plans. It seeks to uphold the rural and rustic nature of the town and the area surrounding Squash Lake. Nonetheless, it allows for religious assemblies throughout Oneida County and on the subject property. Eagle Cove has had reasonable opportunity not only to seek rezoning and a conditional use permit, but also to

App. 16 look for other land in Oneida County that would serve its purpose. It chose not to do so. While it may be said that Eagle Coves insistence on a year-round Bible camp on the subject property without seeking alternatives is unreasonable, Oneida Countys zoning regulations that seek to preserve the character of the area around Squash Lake are not. D. Equal Terms Claim Eagle Cove also argues that the OCZSPO violated the equal terms provision of RLUIPA, which prevents governmental land use regulations that treat religious institutions on less than equal terms with similarly situated institutions that do not have a religious affiliation. 42 U.S.C. 2000cc(b)(1). The equal terms section is violated whenever religious land uses are treated worse than comparable nonreligious ones, whether or not the discrimination imposes a substantial burden on religious uses. Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 616, 616 (7th Cir. 2007). In determining whether a claim exists under the equal terms provision, we look to the zoning criteria rather than the purpose behind the land use regulation. River of Life Kingdom Ministries v. Village of Hazel Crest, Ill., 611 F.3d 367, 371 (7th Cir. 2010). And if religious and secular land uses that are treated the same from the standpoint of an accepted zoning criterion, that is enough to rebut an equal terms claim[.] Id. at 373. The Single Family Residential zoning district, wherein the subject property lies, is the most restrictive district in the county and ensures quiet seclusion for families living in the area. While this zoning district permits certain religious and secular

App. 17 assemblies, recreational camps are prohibited outright, regardless of religious affiliation. It is clear that the OCZSPO does not treat religious land uses, in particular year-round Bible camps, less favorably than their secular counterparts. The County established the land use regulations to ensure that the single-family environment around Squash Lake remains intact. To achieve this goal, the OCZSPO forbids year-round recreational camps outright. Unfortunately for Eagle Cove, this means that they will have to place their Bible camp elsewhere. E. Wisconsin Constitutional Claim Eagle Cove believes that the protection offered under Article 1, 18 of the Wisconsin Constitution is greater than that offered under federal law. Wisconsin applies a compelling state interest/least restrictive alternative test when a claim is brought challenging a state law that violates an organization or individuals freedom of conscience. Coulee Catholic Schools. v. Labor and Industry Review Commn, 768 N.W.2d 868, 886 (Wis. 2009). The test requires that the organization prove it has a sincere religious belief and that such belief is burdened by the state law at issue. The burden is then shifted to the state to rebut the claim by showing a compelling state interest that cannot be served by a less restrictive alternative. Id. Even accepting that Eagle Cove has a sincere belief and that it is burdened by the OCZSPO, the County has demonstrated that it has a compelling state interest in preserving the rural nature around Squash Lake achieved by the least restrictive means possible (a neutral zoning ordinance). Like any entity, religious organizations are subject to general laws for taxes,

App. 18 licensing, social security, and the like that are normally acceptable. Id. at 887. The zoning ordinance at issue here is generally applicable to all residents within Oneida County and thus would qualify as normally acceptable under Article I, 18 of the Wisconsin Constitution. III. CONCLUSION Considering all facts in favor of Eagle Cove, we find that all claims under RLUIPA as well as the federal and Wisconsin constitutions lack merit. Consequently, we AFFIRM the district courts order granting Woodboro and the Countys motion for summary judgment.

App. 19

APPENDIX B IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN 10-cv-118-wmc [Filed February 4, 2013] _______________________________________________ EAGLE COVE CAMP & CONFERENCE CENTER INC., a Wisconsin non-stock corporation; ARTHUR G. JAROS, JR., individually and as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, and as trustee of the Arthur G. Jaros, Sr. declaration of trust, and as trustee of the Dawn L. Jaros declaration of trust; WESLEY A. JAROS, as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros charitable trust; RANDALL S. JAROS, individually and as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros charitable trust; CRESCENT LAKE BIBLE FELLOWSHIP, a Wisconsin non-stock corporation; and KIM WILLIAMSON, vs. Plaintiffs,

TOWN OF WOODBORO, Wisconsin, a body corporate and politic; COUNTY OF

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

App. 20 ONEIDA, Wisconsin, a body corporate; and ONEIDA COUNTY BOARD OF ADJUSTMENT, ) ) ) Defendants. ) _______________________________________________ ) OPINION AND ORDER This action concerns the impact of zoning and land use regulations adopted by the Town of Woodboro and the County of Oneida on a group that believes they have been called to build a large, year-round Bible camp on a specific piece of land located on a northern Wisconsin lake. After unsuccessfully petitioning for permanent rezoning of the land, plaintiffs applied for a conditional use permit. When this, too, was denied, plaintiffs turned to this federal court for relief under various provisions of the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA), certain provisions of the United States and Wisconsin Constitutions, the Americans with Disabilities Act, 42 U.S.C. 12131 et seq., the Rehabilitation Act, 29 U.S.C. 794, and a state law claim for certiorari review pursuant to Wisconsin Statute 59.694(10). Presently before the court are defendants motions for summary judgment as to all claims and plaintiffs motion for summary judgment as to their RLUIPA Total Exclusion claim. The court has no reason to doubt plaintiffs, and particularly the Jaros brothers, sincere belief that they have been called to build a Bible camp on the land in issue -- and is aware of the years, talents and money spent, as well as dedication shown, in pursuit of that belief. Patently obvious is this courts inability to discern whether plaintiffs utter lack of success to date

App. 21 is Gods way of telling them -- through admittedly-imperfect, secular institutions -- to look elsewhere for a more acceptable location. Ultimately, only God knows if they should continue to knock at this particular door or look for an open window somewhere else. What appears substantially more certain, at least to this court, is that plaintiffs have no right to relief under RLUIPA, the United States Constitution or the Wisconsin Constitution. Indeed, as set forth below, the undisputed facts demonstrate that plaintiffs do not meet their burden of establishing all the elements of proof under any of their claims. Accordingly, the court will grant summary judgment to defendants. UNDISPUTED FACTS1 A. Overview 1. The Parties Plaintiffs consist of Eagle Cove Camp & Conference Center, Inc., a non-stock, Wisconsin corporation formed on December 27, 2004, and approved by the Internal Revenue System as a 501(c)(3) charitable organization and private operating foundation. Plaintiff Arthur G. Jaros, Jr. is a co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, (Charitable Trust), successor trustee under the Arthur G. Jaros, Sr. Declaration of Trust and successor trustee under the Dawn L. Jaros Declaration of Trust. Arthurs brothers Wesley A. Jaros and Randall S. Jaros are also plaintiffs and co-trustees of the Charitable Trust. The Charitable Trust was established in 2002.
1

Based on the submissions of the parties, the following facts appear to be material and undisputed.

App. 22 Plaintiff Crescent Lake Bible Fellowship (CLBF) is a non-stock, Wisconsin corporation. CLBF has operated a Bible camp in the area since the 1930s. Plaintiff Kim Williamson is an employee of CLBF. On August 13, 2006, the Jaros brothers entered into an Operating Agreement with CLBF. Defendant Town of Woodboro is located in Oneida County, Wisconsin, and possesses the authority of a township conferred by Chapter 60 and other provisions of the Wisconsin Statutes. The Town is comprised of roughly 21,857 acres of land or 34.6 square miles and 2.4 square miles of water, all lying within Oneida County. As of the 2000 federal census, the Towns population was 685 persons. As of January 1, 2010, the Wisconsin Department of Administration estimated the Towns population to be 756 persons. Defendant County of Oneida is a body corporate under Wis. Stat. 59.01, situated entirely within the State of Wisconsin and within a geographic region with an abundance of lakes and forests.2 Defendant Oneida County Board of Adjustment is a board authorized by Wis. Stat. 59.694 and created by action of the County of Oneida. This county is comprised of roughly 708,751 acres of land (excluding the City of Rhinelander, which lies within its boundaries).

The parties point out that this region is sometimes colloquially referred to as The Northwoods, though in this courts experience mainly by those attempting to market the area or by people who do not actually live there full-time.

App. 23 2. The Subject Property The Jaros family has owned property on Squash Lake in the Town of Woodboro and the County of Oneida for over sixty years, consisting of two principal parcels of land (the Subject Property or Property). The largest part of the Property, approximately 29 acres, was deeded to Eagle Cove (under its prior name, Squash Lake Christian Camp, Inc.) by the Charitable Trust on December 30, 2004, at an appraised value of $400,000. Eagle Cove has owned this land since that time. The Charitable Trust also holds -- and at all times relevant to this lawsuit has held -- an ownership interest in approximately five acres contiguous to Eagle Coves 29 acres. The Jaros family has no desire to sell either of these two parcels. The Subject Property as a whole contains both shoreland and non-shoreland areas, as those terms are defined by Wisconsin law.3 Between 550 and 600 feet of this Property is lake frontage on Squash Lake, an approximately 400-acre clear water, publicly-owned inland lake. The Property is directly serviced by United States Highway 8, a major east-west artery running across northern Wisconsin. The Charitable Trust holds assets totaling in excess of $2,000,000 in value, which must be devoted exclusively for the use of charitable, religious, and educational purposes consistent with its status as a 501(c)(3) entity, with special emphasis on the
3

For zoning purposes, shorelands are defined as land within 1,000 feet of the ordinary high-water mark of lakes, ponds, or flowages and within 300 feet of the ordinary highwater mark of rivers and streams. See Wis. Stat. 50.692(1)(b).

App. 24 purpose of dissemination of the word of God by any and all legitimate means, although it does not require that the assets be devoted exclusively for the purposes of a Bible camp. (Counts MSJ, Ex. 26 (dkt. #63-26) 3-4; id., Ex. 25 (dkt. #63-25) 64-67.) The Arthur G. Jaros, Sr. Declaration of Trust and the Dawn L. Jaros Declaration of Trust also hold title to an additional 24 acres of undeveloped land directly north of the Subject Property. The assessed value of this land totals approximately $1,552,000, which plaintiffs also intend to use for the benefit of the proposed Bible-camp by (1) deeding one acre to Eagle Cove; (2) granting an easement to Eagle Cove to construct an access road between U.S. Highway 8 and the camp facilities; and (3) allowing the camp to use the land for passive recreation activities. The Jaros family also has no desire to sell this land. 3. The Planned Bible Camp Plaintiffs are motivated by their faith to develop the proposed Bible camp. The Operating Agreement between Eagle Cove and CLBF includes a doctrinal statement that the purpose of the Bible camp is to act based on the teachings of Gods Word, a Christian Bible Camp within that certain Protestant tradition within the Christian religion and broadly described and known as evangelical for the purposes of evangelizing non-Christians, providing opportunities to worship the triune God in the special setting of the beauty of His Northwoods creation and with due consideration and respect for the residents of Squash Lake, fostering discipleship and sanctification and equipping Christians for the

App. 25 work of ministry and for the apologetics task .... (Pls. PFOFs, Ex. E (dkt. #61-5) 1; see also id. at 6, 9 (describing the purpose of the camp as providing religious assembly and exercise).) The Bible camps mission is summarized in terms of Five Purposes: (1) Worship, meaning worshiping God through various aspects, including preaching and singing, and exulting God in his name; (2) Discipleship, which means encouraging growth in the life of a believer; (3) Fellowship, meaning associating with other believers of like mind, sharing struggles and comradery with other believers; (4) Outreach/ Evangelism, which means sharing the Gospel with others; and (5) Service, meaning to help and bless other people. These Five Purposes are an important part of plaintiffs religious beliefs, and plaintiffs wish to impart these religious beliefs to campers. In this way, plaintiffs seek to save unbelievers at the Bible camp, as they are obligated to do by the Great Commission passage in the Book of Matthew.4

Matthew 28:16-20: Then the eleven disciples went to Galilee, to the mountain where Jesus had told them to go. When they saw him, they worshiped him; but some doubted. Then Jesus came to them and said, All authority in heaven and on earth has been given to me. Therefore go and make disciples of all nations, baptizing them in the name of the Father and of the Son and of the Holy Spirit, and teaching them to obey everything I have commanded you. And surely I am with you always, to the very end of the age.

App. 26 Specifically, plaintiffs believe that the Great Commission includes constructing and operating a Bible camp to disseminate Gods word on a lake -- just as Jesus did in preaching around the Sea of Galilee -where baptisms can be performed. Even more specifically, the Jaros brothers believe that their religion mandates them to build the Bible camp on the Subject Property. The planned Bible camp is to be a year-round facility, with one principal structure, a multi-function lodge building. This building will include a chapel, classrooms for religious instruction, boarding accommodations, food service facilities, and recreational amenities. The activities will involve evangelism, worship, prayer, meditation, devotional scripture reading, discipleship and role-modeling, as well as Christian educational instruction. The camp will be open to 250 to 300 children and adults, offering pastoral and other religious retreats. Plaintiffs also intend to minister to children with various serious disabling medical conditions, and plaintiffs have considered that purpose in designing the Bible camp to be a safe and secure environment for children with serious disabling medical conditions. B. Land Use Regulation Scheme in Oneida County and Town of Woodboro Plaintiffs use of the Property is subject to the laws and regulations of both the County and the Town of Woodboro, including the Oneida County Zoning and Shorewood Protection Ordinance (the Zoning Code), which was enacted effective May 15, 2000, pursuant to the authority granted the County under Wis. Stat. 59.69. But for the Towns adoption of the Zoning

App. 27 Code, no conditional use permit or rezoning would have been required to construct and operate the proposed Bible camp on the non shoreland portion of the Property. 1. Zoning Districts Sixteen of the twenty towns in Oneida County, including the Town of Woodboro, have approved the Zoning Code pursuant to Wis. Stat. 59.69(5). The Town of Woodboro formally adopted the Zoning Code on May 8, 2001. The Code describes fourteen separate zoning Districts: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. Forestry 1-A (District 1-A) Forestry 1-B (District 1-B) Forestry 1-C (District 1-C) Single Family Residential (District 2) Multiple Family Residential (District 3) Residential and Farming (District 4) Recreational (District 5) Business B-1 (District 6) Business B-2 (District 7) Manufacturing and Industrial (District 8) General Use (District 10) Shoreland-Wetland (District 11) Residential and Retail (District 14) Rural Residential (District 15)

2. Conditional Use Permitting Process Within each zoning district, various land uses are categorized as (1) permitted, (2) administrative review and (3) conditional uses. Permitted uses for a zoning district are those land uses that are allowed in the

App. 28 district with a building permit.5 Administrative review uses for a zoning district are those land uses that are allowed in the district only with an administrative review permit issued by the Oneida County Planning and Zoning Department (the Planning and Zoning Department).6 Administrative review uses must be compatible with the permitted uses for a given zoning district and generally include specific conditions to fulfill the purpose of the district and the Zoning Code. Conditional uses for a zoning district are those land uses that are allowed in the district only with a conditional use permit issued by the Oneida County Planning and Zoning Committee (the Planning and Zoning Committee).7 Because of their unique characteristics, conditional uses are allowed in a given zoning district only after specific steps are taken to consider their impact under the Zoning Code. The Planning and Zoning Department initially reviews a conditional use permit application to determine if it is complete. To be deemed complete, all permits required by the Wisconsin Department of

There is an exception to this. Under 9.35(c) of the Code, the Zoning Administrator has unreviewable power to decree that a permitted use shall instead be treated as an administrative review if it is likely to have significant impact on surrounding property or on the provision of governmental services. (Countys MSJ, Ex. 13 (dkt. #63-13) 9.35(C).) In certain circumstances an application for an administrative review permit may be considered as one for a conditional use. A conditional use permit can also be issued by the Oneida Board of Adjustment and/or by a court of competent jurisdiction. Wis. Stat. 59.694(10).

App. 29 Natural Resources and U.S. Army Corps of Engineers must be submitted with the conditional use permit application.8 Then the Planning and Zoning Committee seeks an advisory recommendation from the town in which the proposed conditional use is located and holds a public hearing on the application. Finally, certain standards must be met before a conditional use permit is approved: 1. The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare. The uses, values and enjoyment of neighboring property shall not be substantially impaired or diminished by the establishment, maintenance or operation of the conditional use. The proposed conditional use is compatible with the use of adjacent land and any adopted local plans for the area. The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district. Adequate utilities, access roads, drainage and other necessary site improvements have

2.

3.

4.

5.

The parties dispute whether certain other permits must be submitted for the permit application to be deemed complete.

App. 30 been or will be provided for the conditional use. 6. Adequate measures have been or will be taken to provide ingress and egress so as to minimize traffic congestion in the public streets. The conditional use shall conform to all applicable regulations of the district in which it is located. The conditional use does not violate shoreland or floodplain regulations governing the site. Adequate measures have been or will be taken to prevent and control water pollution, including sedimentation, erosion and runoff.

7.

8.

9.

(Countys MSJ, Ex. 1 (dkt. #63-1) 9.42(E).) 3. Petition for Rezoning Process Under the Zoning Code, when reviewing a petition for rezoning, the Planning and Zoning Committee and the County Board must consider the following factors: 1. 2. Whether the change is in accord with the purpose of this ordinance. Whether the change is consistent with the land use plans of the County, the affected town, and towns adjacent to the affected town. Whether conditions have changed in the area generally that justify the change proposed in the petition.

3.

App. 31 4. 5. Whether the change would be in the public interest. Whether the character of the area of neighborhood would be adversely affected by the change. Whether the uses permitted by the change would be appropriate in the area. Whether the town board of the town in which the change would occur approves of the change. The size of the property that is the subject of the proposed change. Whether the area to be rezoned is defined by recognizable or clearly definable boundaries such as those found in U.S.G.S. Land Officer Survey maps or recorded plant, or those created by highways, railroad rights-of-way, meandering streams or lakes. Position of affected landowners.

6. 7.

8. 9.

10.

(Id. at 9.86(F).) 4. The Towns Land Use Programs The Town of Woodboro has a number of other programs directly and indirectly affecting land use within the Town. The Town of Woodboro adopted the Woodboro Land Use Plan on November 11, 1997. Oneida County amended its Zoning Map to be consistent with the Towns Land Use Plan in 1998. This Plan neither expressly contemplates Bible camps, whether year-round or seasonal, nor other religious

App. 32 land uses. (The significance, if any, of this express omission is in dispute.) The Town of Woodboro Land Division Ordinance establishes minimum lot size for newly-platted parcels and some minimum road standards. During the plaintiffs application process for a conditional use permit to operate the Bible camp, the Town of Woodboro developed a Comprehensive Plan pursuant to Wisconsin Statutes Chapter 66. Adopted in April 2009, this Comprehensive Plan states as a policy: The Town should encourage low density single family residential development for its lake- and river-front properties. (Countys MSJ, Ex. 19 (dkt. #6319) 14.) While the Comprehensive Plan was in draft form, Eagle Cove submitted to the Town a written comment letter in early February 2009, which criticized the draft for omission of religious land uses of any kind. The parties dispute whether the Comprehensive Plan regulates land use, as well as whether the Comprehensive Plans failure to allow Bible camps expressly in the Town of Woodboro means that plaintiffs proposed Bible camp is not permitted in the Town. The Town actively participates in County zoning and subdivision review decisions that may affect the Town, including (1) zoning amendment and subdivision requests acted on by the County Planning and Zoning Committee, and (2) variance and conditional use requests acted on by the County Zoning Board of Adjustment. The Towns Plan Commission reviews zoning applications and m ak es f or m al recommendations to the Town Board, which forwards a decision to Oneida County for consideration. The

App. 33 Towns 30(b)(6) designee testified that he could not recall the County ever rejecting the Towns recommendation for a petition for rezoning. C. Breakdown of Zoning in County and Town 1. Zoning Districts Roughly 57.47% of the land in the Town of Woodboro is zoned Forestry 1-A. (No land in the Town is zoned Forestry 1-B.) Seasonal, recreational camps -whether religious or secular -- and religious shrines are categorized as administrative review uses in the Forestry 1-A and 1-B zoning districts.9 Campgrounds -whether religious or secular -- are categorized as conditional uses in the Forestry 1-A and 1-B zoning districts. Approximately 16% of the Countys land (excluding the City of Rhinelander) is zoned General Use (District 10). Recreational camps, seasonal recreational camps, and religious shrines are categorized as administrative review uses; schools and campgrounds are categorized as conditional uses. Approximately 10% of the Countys land (once again, excluding Rhinelander) and 18% of the Towns land is zoned Single Family Residential (District 2). The stated purpose of District 2 is
9

With regard to this provision and others, the code limits seasonal recreational camps with more than one principal structure to this category. Defendants contend that this language has never been enforced and that seasonal recreational camps, regardless of the number of principal structures, are all categorized as administrative review uses in Forestry 1-A and 1-B districts. (Defs. Reply to Pls. PFOFs (dkt. #93) 71.)

App. 34 to provide an area of quiet seclusion for families. This is the Countys most restrictive residential zoning classification. Minor vehicle traffic should be infrequent and people few. (Countys MSJ, Ex. 1 (dkt. #63-1) 9.22(A).) Churches, schools, libraries, community buildings, museums, community living arrangements with nine or more residents, governmental uses, bed and breakfast establishments with three or more guest rooms, and public parks and playgrounds are categorized as conditional uses in District 2. There are no objective size restrictions on these conditional uses, but all are subject to approval. Some of these uses may generate significant motor vehicle traffic and noise, at least periodically, though all of these conditional uses are subject to approval within District 2. Approximately 10% of the Countys land (excluding Rhinelander) and 20% of the Towns land is zoned Residential and Farming (District 4). Like in District 2, the same uses -- churches, schools, etc. -- are categorized as conditional uses in District 4. In addition to those uses, a number of other uses, including airports, commercial farming operations, retail businesses, etc., are categorized as conditional uses in District 4. Some of these conditional uses could have greater traffic impacts than a recreational camp. Some of the retail uses allowed conditionally in this district might also be of a size and scale equal to or greater than a recreational camp. Roughly 3.6% of the Countys land (excluding Rhinelander) is zoned Recreational (District 5). In this district, recreational seasonal camps, schools and campgrounds are categorized as conditional uses.

App. 35 Roughly 0.42% of the Countys land (excluding Rhinelander) is zoned Multiple Family Residential (District 3) and a little less than 3% of the land in the County (excluding Rhinelander) and approximately 4.5% of the Towns land is zoned Rural Residential (District 15). Churches and schools also are categorized as conditional uses in these zoning districts. Less than 1% of the land in the County (excluding Rhinelander) and a little over 1% of the land in the Town is zoned Manufacturing and Industrial (District 8). Religious shrines, churches and schools are categorized as conditional uses in this district. 2. Squash Lake Area Squash Lake is partially located in the Town of Woodboro and partially located in the neighboring Town of Crescent. The entire lake and both towns are all located in Oneida County. The surface area of Squash Lake comprises approximately 396 acres; the lakes shoreline is approximately 7.8 miles. Before 1976, all of the land surrounding Squash Lake in the Towns of Woodboro and Crescent was zoned General Use. At that time, all of the land within 1,000 feet of Squash Lake was rezoned Single Family Residential, except for the seven parcels described below. These same zoning restrictions were carried forward in a 1998 amendment to the County Zoning Map and again in the 2000 comprehensive re-write of the text of the Zoning Code. There are a total of 177 parcels designated for real estate tax purposes surrounding Squash Lake. All but one of the 170 parcels zoned Single Family Residential are only licensed for single family use. The one

App. 36 exception is a parcel dedicated in 1974 as a public park pursuant to a subdivision plat approved by the Town of Woodboro.10 The seven parcels not zoned Single Family Residential (District 2) are zoned Business B-2 (District 7).11 Six of the seven business parcels are located in one area of the lakeshore in Woodboro. These parcels comprise 6.11 acres of developed property with 998 feet of lake frontage, consisting of: (1) a personal home, (2) four cottages (ranging in size from one to three bedrooms), (3) a personal residence, (4) a 4-unit rental apartment building with three 1-bedroom units and one 2-bedroom units, (5) 5-unit rental apartment buildings with two 2-bedroom units and three 1-bedroom units, and (6) a 17-unit apartment building with eleven 2-bedroom units and six 1-bedroom units. The seventh parcel is located in the Town of Crescent and consists of approximately 20 acres of land with 3,823 feet of lake frontage, which was formerly a resort, but has not been in operation since 1999. This parcel is subject to (1) an order issued by the Wisconsin Department of Natural Resources designating it managed forest land under Chapter 77 of the

This parcel is roughly 0.4 acres in size with approximately 60 feet of lake frontage. The subdivision plat contains a written restriction that states: The public park shown on this plat shall remain as a permanent green area for the benefit of the public and shall remain forever in its natural state. (Jennrich Decl. (dkt. #48) 82.) The seven parcels are comprised of 11 sellable lots for real estate purposes, portions of 4 additional lots and one twenty-acre tract with approximately 3,800 lineal feet of lake frontage.
11

10

App. 37 Wisconsin Statutes, and (2) a conservation easement with the Northwoods Land Trust. D. Plaintiffs Rezoning and Conditional Use Applications Part of the Property in dispute is zoned Residential and Farming (District 4); the other part is zoned Single Family Residential (District 2). More generally, the eastern portion of the land dedicated to the Bible Camp nearer to Squash Lake, is zoned Single Family Residential; the western portion nearer to U.S. Highway 8 is zoned Residential and Farming. (The additional 24 acres described above are similarly zoned.) Neither of these zoning districts allows for the proposed camp. Year-round, recreational camps are permitted in the County of Oneida only on land that is either unzoned or zoned Recreational (District 5) or General Use (District 10). Since neither of these two zoning districts exists anywhere within the Town of Woodboro, there are no locations within the Town that currently permit a year-round camp. In an effort to obtain permission for its Bible camp on the Subject Property, plaintiffs attempted first to obtain rezoning -- December 2005 through August 2006 -and then a condition use permit (CUP) -- December 2006 through February 2010. The Town opposed both. The County denied the rezoning petition on August 5, 2006, and the County and the Board of Adjustment denied the CUP on July 29, 2009.

App. 38 1. Rezone Petition In October 2005, Arthur Jaros exchanged emails with Steve Osterman of the County Zoning Department regarding the Jaros brothers desire to construct a Bible camp in Woodboro. Osterman advised Jaros that both a rezone and a conditional use permit from the County would be required to proceed with the project. The County informed plaintiffs that a rezoning of the Property to District 5 or District 10 would be necessary for the proposed, year-round camp. On December 3, 2005, the plaintiffs filed a petition to rezone the 34 acres of land described above to Recreational District 5. The general reason provided for rezoning was to allow for the construction and operation of a Bible camp and related activities. The petition contained a general description of the planned Bible camp, but did not provide any specifics on its anticipated capacity for campers, the size of the buildings, or the extent of the camps intended operations. The County sent a copy of the rezone petition to the Woodboro Town Clerk on December 14, 2005, asking for comments. The Woodboro Town Plan Commission held a public meeting on the petition on February 6, 2006. Arthur Jaros was present and sent a subsequent letter to the Town addressing questions raised during the meeting. On February 20, 2006, the Woodboro Town Plan Commission met again, discussed the rezone petition and voted to recommend to the Town Board that the Town submit a negative recommendation to the County. On March 14, 2006, the Town Board met to discuss the petition. Arthur Jaros was given an opportunity to speak before the Board deliberated. Ultimately, however, the Town Board also

App. 39 voted to recommend that the County deny plaintiffs petition for rezoning. Following that meeting, the Town of Woodboros Attorney, Gregory Harrold, contacted Arthur Jaros by letter, requesting a copy of a proposed restrictive covenant Jaros had mentioned in support of his rezone petition.12 Attorney Harrold received a draft of the restrictive covenant and forwarded it to Town Clerk Schmidt on March 30, 2006. On April 18, 2006, the Town Board met at Attorney Harrolds request to reconsider its original March 14 recommendations. A t that meeting, there was a presentation by a member of Attorneys Harrolds firm on RLUIPA. Arthur Jaros was also present and given an opportunity to respond. On May 11, 2006, the Town Board again held a public meeting on the rezone petition, though it failed to provide actual notice of the meeting to the rezone petitioners. The Town Board voted again to recommend that the County deny the petition on May 15, 2006. In its written recommendation dated May 16, 2006, the Town provided the following reasons why the proposed camp would be inconsistent with its Land Use Plan: It does not preserve character of the Town; the rustic/rural

During the rezoning effort, the petitioners filed a document entitled Restrictive Covenant providing that if the Subject Property were rezoned to District 5 Recreational, but then at some point in the future, no longer used as a Bible camp, the propertys uses would again be governed by District 2 and District 4 zoning restrictions.

12

App. 40 It will result in significant increased traffic and noise which will impact the safety and general welfare of the occupants in the vicinity; It will encourage excessive utilization for single family residential housing; Further, the unknown nature of use which could be expanded significantly is an unknown risk to which neighbors and the Town should not be exposed to; The [Town Land Use Plan] encourages single family development, not large scale (275 campers per week) utilization[.] (Countys MSJ, Ex. 30 (dkt. #63-30) 2.) On April 19, 2006, the Oneida County Planning and Zoning Committee conducted a public hearing on the rezone petition, during which plaintiffs had another opportunity to speak. On June 13, 2006, the Planning and Zoning Department provided a staff report to the Committee, which also recommended denial of the petition. The staff report concluded that rezoning the subject property to Recreational would conflict with the majority, single-family usage on Squash Lake, the purposes of a Single Family Residential district, the Zoning Code as a whole, and the 1998 Town Land Use Plan. In addition, the staff report addressed whether the denial would constitute a substantial burden or implicate the unequal treatment provision of RLUIPA, concluding that it would not. The report stated that the petitioners could practice their faith under existing zoning, but acknowledged that the zoning of the

App. 41 Subject Property would not allow for a recreational camp, such as that proposed by the applicants. On June 14, 2006, the Planning and Zoning Committee voted unanimously to recommend to the County Board that it deny the requested rezoning. The Committee concluded that (1) rezoning would be inconsistent with the 1998 Town Land Use Plan and (2) the uses in a Recreational zoning district would conflict with those permitted in a Single Family Residential zoning district. The Committee also purported to consider whether the denial implicated RLUIPAs provisions. In August 2006, the Countys Planning and Zoning Committee submitted a Report to the County Board of Supervisors, which memorialized its June 14th recommendation. By resolution adopted on August 15, 2006, the Countys Board of Supervisors accepted the County Zoning Committees recommendation and denied plaintiffs rezone petition. 2. Conditional Use Permit Application On December 29, 2006, Eagle Cove, the Charitable Trust, and the Dawn L. Jaros Declaration of Trust submitted a conditional use permit application to the County for the purpose of constructing a Bible camp on the Subject Property. The original CUP application described (1) visitor welcome/service facility located adjacent to U.S Highway 8; (2) a visitor parking lot located adjacent to Highway 8 with visitors transported to the lodge by means of a self-propelled train car; (3) athletic fields adjacent to the visitor center; (4) a small depot/wellhouse near the lodge for the purpose of loading and unloading visitors from the train; and

App. 42 (5) a lodge located adjacent to the lake consisting of a Chapel, Classroom Area, Dining Hall, Lodging, Multipurpose Room/Gymnasium and Administrative Areas. (Countys MSJ, Ex. 38 (dkt. #63-38); id., Ex. 28 (dkt. #63-28) 94-95.) The application also stated that the facilities were designed to accommodate 250 to 300 guests/campers. On February 1, 2007, the County Zoning Department informed the applicants that their original CUP application was incomplete under 9.42 of the Zoning Code, because permits were missing from the Wisconsin Department of Natural Resources and the Department of Transportation. The letter also asked petitioners for additional information about the ownership of the land, the number of campers to be served, and details regarding planned recreational uses. In early August 2007, the County Zoning Department administratively closed its file because the applicants submitted nothing further, but informed the applicants that they were free to refile. In the meantime, plaintiffs were expending extensive resources obtaining various site-specific permits from various State of Wisconsin departments. On November 15, 2007, plaintiffs obtained a grading permit from the Wisconsin Department of Natural Resources, which in part found that the impact to natural scenic beauty will not be significant if the applicant complies with the permit conditions and their plan to screen the development using native vegetation. (Pls. Addl PFOFs (dkt. #77) 8.) On December 17, 2008, the applicants submitted an amended CUP application to the County, including some of the information previously requested by the

App. 43 County Zoning Board. Specifically, the amended application included an Overall Site Plan, describing the layout of the proposed Bible camp facilities, including a proposed lodge in excess of 106,000 square feet in size, with a building footprint in excess of 42,000 square feet, making it the largest building in the Town of Woodboro.13 As for the number of campers, the Overall Site Plan provided that the lodge would accommodate a maximum of 348 persons, including 240 campers and 108 staff and visitors. In addition, the Plan provided for five outdoor tent camping sites, each accommodating two 5-6 person tents. The Plan also provided for at least 97 parking spaces for cars and buses near Highway 8, proposing to utilize a self-propelled, standard gauge, diesel powered rail car measuring over 85 feet in length and otherwise similar in size to a typical single-level Amtrak passenger rail car to transport campers and other visitors from the parking area to the lodge near the lake. The amended CUP application included plans for the construction of facilities for various recreational uses, including an archery range, an observatory, sports fields, ropes courses, volleyball courts, and ice skating facilities. In a letter dated February 18, 2009, the County Zoning Department stated that it would forward the CUP application to the Town of Woodboro, but warned that it did not expect that it will be in a position to

On May 27, 2009, the applicants submitted a potential, alternate plan for the lodge, reducing it from three to two wings, but maintaining all of the components of the lodge along with essentially the same total square footage and footprint.

13

App. 44 recommend to the Planning and Zoning Committee that it approve a conditional use permit because it does not believe that the proposed use as outlined in the application is permitted by or is otherwise consistent with the zoning of the property[.] (Countys MSJ, Ex. 47 (dkt. #63-47) 3-4.) While acknowledging that the Zoning Code allows a church and/or school in the Single Family Residential district with a CUP, the Department noted that the proposed project is neither a church nor school, but rather a recreational camp, which is not a permitted use in the Subject Propertys zoning districts. The Department deemed the application complete on March 4, 2009. The Woodboro Town Board met to discuss the CUP application on March 3, 2009. On April 23, 2009, the Town issued a recommendation to the County that it deny the CUP. On April 29, the Planning and Zoning Committee conducted a public hearing regarding the CUP application. The applicants were given an opportunity to advocate in favor of the application. On June 26, the Planning and Zoning Committee conducted an onsite inspection of the Subject Property. A staff report dated July 29, 2009, recommended that the Planning and Zoning Committee deny the application, explaining that the plan was significantly different than that of either a school or church, and that a year-round, recreational camp is not a permitted use in the zoning districts at issue. The report concluded that the proposed use was not compatible with the predominantly single family residences adjacent to the property, the purposes and nature of the Single Family Residential zoning district, and the Towns 2009 Comprehensive Plan. That same day, the

App. 45 Planning and Zoning Committee conducted a public meeting at which it voted to deny the CUP application, effectively adopting the reasons provided in the staff report. On September 16, 2009, the applicants filed an appeal with the County Board of Adjustment. That Board conducted a public hearing regarding the applicants appeal on December 1st. The Board allowed the parties to make written submissions and the applicants were given an opportunity to advocate in favor of their appeal at that hearing. On January 12, 2010, the County Board of Adjustment conducted another public meeting at which it affirmed the denial on January 12, 2010, and memorialized the denial in a written resolution on February 11, 2010. E. Other Properties in Oneida County Plaintiffs have never looked into the possibility of constructing and operating the proposed Bible camp on other land in Oneida County. Plaintiffs have also not explored operating a seasonal Bible camp. Since 2006, a number of properties have been sold in Oneida County of comparable size with lake frontage and zoned Recreational or General Use. The parties dispute whether there is other land in the County which is available and would meet the needs of plaintiffs proposed Bible camp; in addition, the Jaros plaintiffs claim to have a specific, spiritual connection to the Subject Property that does not exist with any other lakefront properties. Plaintiffs also contend that they cannot sell the Subject Property and buy property elsewhere.

App. 46 At least fifteen recreational camps currently exist in Oneida County. All fifteen existing recreational camps are located within the Recreational, Forestry 1-A, Forestry 1B, or General Use zoning districts. Defendants identify four Bible camps in the County, including plaintiff CLBFs camp. The most recent recreational camp in the County was built in 1956. The Countys 30(b)(6) designee could not recall receiving any applications to rezone an area as District 5 or District 10 for purposes of a year-round recreational camp, nor any conditional use permits granted for any new recreational camps. OPINION Plaintiffs bring the following eleven causes of action against defendants: (1) (2) (3) (4) (5) (6) (7) (8) (9) (10) (11) RLUIPA Total Exclusion Claim; RLUIPA Unreasonable Limitation Claim; RLUIPA Substantial Burden Claim; RLUIPA Equal Terms Claim; RLUIPA Discrimination Claim; Equal Protection Claim; Free Exercise Claim; Wisconsin Constitution Article I, Section 18 Claim; ADA Claim Rehabilitation Act Claim State Law Certiorari Review.

App. 47 Plaintiffs affirmatively moved for partial summary judgment only as to its claim of a violation of RLUIPAs total exclusion provision. Both defendants -- the Town and the County -- filed largely-overlapping motions for summary judgment on all eleven counts. Finding no merit in plaintiffs claims, the court will grant defendants motions.14 I. RLUIPA Total Exclusion Claim RLUIPAs total exclusion provision provides: No government shall impose or implement a land use regulation that-- (A) totally excludes religious assemblies from a jurisdiction; . . . . 42 U.S.C. 2000cc(b)(3)(A). Plaintiffs contend that the exclusion of year-round Bible camps from the Town of Woodboro violates this provision. For plaintiffs claim to succeed, however, they must demonstrate that: (1) the exclusion of year-round Bible camps from the Town constitutes an exclusion of religious assemblies; and (2) the relevant jurisdiction is the Town rather than the County. Plaintiffs stumble as to both hurdles. As to the first, neither the County, nor even the Town, prohibits religious assemblies from their respective jurisdictions. Plaintiffs could use their land for religious assemblies, albeit not the specific,

Also before the court is a motion by plaintiffs for leave to file notice of supplemental authority. (Dkt. #152.) The motion is unnecessary, and therefore the court will deny it as moot. The court, however, did consider the supplemental authority and defendant Town of Woodboros attempts to distinguish these cases.

14

App. 48 year-round religious camp they feel called to build. Churches and schools, including religious schools, are conditional uses on the Subject Property. The record also reflects that plaintiffs have used their land for some religious retreats, although on a much more limited scale than their planned facilities. Unfortunately for plaintiffs, RLUIPAs total exclusion provision is concerned with just that: the complete and total exclusion of activity or expression protected by the First Amendment. See Vision Church, United Methodist v. Vill. of Long Grove, 468 F.3d 975, 989 (7th Cir. 2007) (citing Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (town totally excluded live entertainment, which included nonobscene nude dancing)). The land use regulations at issue here do not approach the complete and total exclusion of religious activity or expression, including plaintiffs religious assembly, whether from the County, the Town, or even from the Subject Property. Moreover, unlike the unreasonable limitations provision discussed below, the total exclusion provision is limited to the exclusion of religious assemblies and does not address the exclusion of religious institutions or structures. Compare 2000cc(b)(3)(A) (totally excludes religious assemblies from a jurisdiction), with 2000cc(b)(3)(B) (unreasonably limits religious assemblies, institutions, or structures within a jurisdiction). The conspicuous absence of the words institutions or structures from the total exclusion provision further supports the conclusion that this provision is concerned with the exclusion of religious

App. 49 expression and not with the exclusion of specific kinds of institutions or structures.15 In addition, the plaintiffs choice to operate a year-round Bible camp, rather than a seasonal one, further restricts the land available to their use since over half of the land in the Town of Woodboro (57.4%) is zoned Forestry 1-A. Seasonal recreational camps whether religious or secular -- are categorized as administrative review uses in this zoning district. While operating a seasonal rather than a year-round Bible camp would certainly restrict plaintiffs religious exercise, such a temporal limitation also does not constitute a total exclusion of religious assemblies under RLUIPA. This court is not holding -- and defendants do not argue -- that the proposed year-round Bible camp is not a religious assembly

Comparing the language of the total exclusion provision to other provisions of RLUIPA is also instructive on this point. The total exclusion provision is concerned with religious assemblies at an aggregate level as compared to (1) the substantial burden provision which is concerned with the religious exercise of a person ( 2000cc(a)(1)) or (2) the equal terms provision which is concerned with the treatment of a religious assembly ( 2000cc(b)(1)). The latter two provisions are focused on the kind of individual treatment of religious entities that plaintiffs seek to challenge, while the purpose of the total exclusion provision is to prohibit efforts to make a purely secular cityscape. See Roland F. Chase, Zoning Regulation of Religious Activities: The Impact of Federal Law, R.I. Bar J. 27 (Sept./Oct. 2005). To the extent the district court in First Korean Church of New York, Inc. v. Cheltenham Twp. Zoning Hearing Bd., No. 05-6389, 2012 WL 645986, at *16 (E.D. Pa. Feb. 29, 2012), held that the total exclusion claim hinges on whether a particular religious assembly, institution or structure was totally excluded from a township, the court rejects the courts analysis.

15

App. 50 under RLUIPA. Rather, the court holds that RLUIPA simply does not require every plausible religious assembly to be allowed, wherever, whenever and however plaintiffs may choose. As to the second hurdle, the court is unconvinced that the Town is the appropriate unit to consider for the total exclusion claim. The County made the crucial decisions at issue here, consistent with its Zoning Code. While it is true the Town chose to adopt the Zoning Code, its adoption does not render the Town a land use regulator. Plaintiffs most compelling argument to the contrary is that absent the Towns adoption of the Countys Zoning Ordinance, the Subject Property would have remained unzoned, allowing for the Bible camp. By adopting the Code, the Town effectively ceded to the County the role of land use regulator, with the Town retaining an advisory role. Ultimately, however, it is the Countys Zoning Code and the Countys denials of plaintiffs efforts to work around the Code that resulted in this lawsuit. To use the language of RLUIPAs total exclusion provision: while the Town acquiesced, it was the County that impose[d] or implement[ed] the Zoning Code.16 Plaintiffs next argue that the use of a in a jurisdiction -- rather than, for example, the use of its -- is meaningful, because the use of a signals that the

Plaintiffs also point to other land use programs adopted by the Town, namely the Towns 1998 Land Use Plan and the 2009 Comprehensive Plan. While these plans informed the zoning districts and types of uses in the Countys Zoning Code, the Zoning Code ultimately governed the Countys decisions to deny the rezoning petition and the CUP application.

16

App. 51 relevant jurisdiction the government regulates under 2000cc(b)(3)(A) could be different than the total jurisdiction regulated by the governmental entity. Applied here, plaintiffs argue that the County could be liable under RLUIPAs total exclusion provision so long as year-round Bible camps are totally excluded from a jurisdiction, namely the Town. Under plaintiffs reasoning, however, a jurisdiction could be a single zoning district, which would mean a government could be liable merely by excluding churches from a particular zoning district. Such piecemeal application of the total exclusion provision goes too far. A far more reasonable construction is for a jurisdiction under RLUIPAs total exclusion provision to refer to the entire geographic area governed by the zoning ordinance at issue. See Elijah Grp., Inc. v. City of Leon Valley, Tex., No. SA-08-CV-0907 OG (NN), 2009 WL 3247996, at *8 (W.D. Tex. Oct. 2, 2009), revd on other grounds, 643 F.3d 419 (5th Cir. 2011). Typically, cases that have turned on the determination of the appropriate jurisdiction have involved a plaintiff seeking review at a zoning district level and a court holding that the appropriate scope is at the municipality level. See, e.g., Elijah Grp., 2009 WL 3247996, at *8 (As applied to a land use regulation like a zoning ordinance, jurisdiction logically refers to the geographical area covered by ordinance. The Citys zoning ordinance applies to the entire City [rather than a particular zoning district].). While these cases are factually distinguishable, the general legal principle articulated in those cases -- that the appropriate jurisdiction or area under review is the land over which the governmental body has regulatory control -- is a sound one.

App. 52 Plaintiffs counter with an example where a county is the land use regulator, but only one town within the county allows churches. Under the courts construction, this hypothetical would not implicate the total exclusion provision because religious assemblies are not totally excluded from the county, but this is not to hold that the hypothetical would pass other RLUIPA provisions, particularly the unreasonable limitations provision. Moreover, an exclusion of a particular sect or denomination from a jurisdiction would likely implicate RLUIPAs nondiscrimination provision. II. RLUIPA Unreasonable Limitation Claims Indeed, this is exactly plaintiffs position in contending that defendants land use regulations also violate RLUIPAs unreasonable limitations, which provides: No government shall impose or implement a land use regulation that-- . . . (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 42 U.S.C. 2000cc(b)(3)(B). There is very little case law on this particular RLUIPA provision. At least one commentator has described the unreasonable limitation provision as a step-down from the total exclusion provision. See Chase, supra, at 27 ([J]ust as the government cannot prohibit all religious assemblies in a jurisdiction, so it cannot prohibit all but a token church or two.). In Vision Church, the Seventh Circuit held that a zoning ordinance that requires a church to obtain a conditional use permit to construct a church in a residential district does not unreasonably limit religious

App. 53 assemblies: The requirement that churches obtain a special use permit is neutral on its face and is justified by legitimate non discriminatory municipal planning goals. Vision Church, 468 F.3d at 991. Here, too, plaintiffs offer no evidence that the County or the Town unreasonably limits their or others religious assemblies, institutions or structures. Year-round recreational camps -- whether religious or secular -- are allowed on roughly 36% of the land in the County (excluding the City of Rhinelander), and seasonal recreational camps -- again religious or secular -- are allowed on 72% of the land in the County.17 Moreover, seasonal recreational camps are allowed on roughly 57% of the land in the Town. Similarly, churches and schools (including religious schools) are allowed on 60% of all of the land in the County (excluding the City of Rhinelander) and approximately 42% of the land in the Town. So, too, campgrounds -- whether religious or secular -- are allowed on approximately 75% of the land in the County (excluding Rhinelander) and roughly 57% of the land in the Town. Finally, religious shrines are allowed on roughly 72% of the Countys land (excluding Rhinelander) and 59% of the land in the Town. The Zoning Codes requirement that certain uses obtain an administrative review or conditional use permit is also neutral on its face. Vision Church, 468 F.3d at 991. As the Seventh Circuit explained in Vision Church, the distinction between permitted uses and administrative review or conditional uses is also
17

Allowed includes permitted uses, administrative review uses and conditional uses, as well as unzoned land.

App. 54 justified by legitimate nondiscriminatory municipal planning goals. Id. A municipality may chart out a quiet place where yards are wide, people few, and motor vehicles restricted[.] [These] are legitimate guidelines in a land-use project addressed to family needs. Id. at 1001 (quoting Congregation Kol Ami v. Abington Twp., 309 F.3d 120, 135 (3d Cir. 2002)). As such, religious assemblies have a reasonable opportunity to build within the [Town and the County], provided that the requirements for a special use permit have been fulfilled. Id. III. RLUIPA Substantial Burden Claim, Free Exercise Claim and Wisconsin Constitution Claim

Defendants also move for summary judgment on plaintiffs substantial burden claim under RLUIPA. Under this provision, No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person . . . unless the government demonstrates that imposition of the burden on that person . . . (A) is in furtherance of a compelling government interest; and (B) is the least restrictive means of furthering that compelling government interest. 42 U.S.C. 2000cc(a)(1). RLUIPA defines religious exercise to encompass any exercise of religion, whether or not compelled by, or central to, a system of religious belief, including [t]he use, building, or conversion of real property for the purpose of religious exercise. Civil Liberties for Urban Believers v. City of

App. 55 Chi. (CLUB), 342 F.3d 752, 759 (7th Cir. 2003) (quoting 42 U.S.C. 2000cc-5(7)). While this provision offers plaintiffs strongest claim under RLUIPA, the Seventh Circuit has repeatedly warned that the substantial component of this test must be taken seriously. Otherwise, the slightest obstacle to religious exercise incidental to the regulation of land use -- however minor the burden it were to impose -- could then constitute a burden sufficient to trigger RLUIPAs requirement that the regulation advance a compelling governmental interest by the least restrictive means. CLUB, 342 F.3d at 761; see also Petra Presbyterian Church v. Vill. of Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (Unless the requirement of substantial burden is taken seriously, the difficulty of providing a compelling government interest will free religious organizations from zoning restrictions of any kind.). For this reason, the Seventh Circuit has explained that a substantial burden under RLUIPA is one that necessarily bears direct, primary, and fundamental responsibility for rendering religious exercise -including the use of real property for the purpose thereof within the regulated jurisdiction generally -effectively impracticable. CLUB, 342 F.3d at 761 (emphasis added); see also Vision Church, 468 F.3d at 997.18 Scarcity of affordable land and the inherent

18

The court considered but rejected the district courts analysis in Church of Scientology of Georgia, Inc. v. City of Sandy Springs, Ga., 843 F. Supp. 2d 1328 (N.D. Ga. 2012), because it appears to be a substantial departure from the Seventh Circuits requirement

App. 56 political aspects of zoning and planning decisions do not render the use of real property for religious exercise impracticable. CLUB, 342 F.3d at 761. Expending considerable time and money also does not entitle land use applicants to relief under RLUIPAs substantial burden provision. Id. In Sts. Constantine & Helen Greek Orthodox Church, Inc. v. City of New Berlin, 396 F.3d 895 (7th Cir. 2005), the Seventh Circuit reversed the district courts decision granting summary judgment to the City and granted summary judgment to the plaintiffchurch, finding the denial of a zoning variance constituted a substantial burden. Understandably, plaintiffs rely heavily on certain language from that case, which suggests that delay, uncertainty and expense constitute a substantial burden. 396 F.3d at 901 (The Church could have searched around for other parcels of land (though a lot more effort would have been involved in such a search than, as the City would have it, calling up some real estate agents), or it could have continued filing applications with the City, but in either case there would have been delay, uncertainty, and expense.). Importantly in Sts. Constantine & Helen, as in other cases where courts have focused on the delay, uncertainty, and expense language, however, the governments action in denying the requested accommodation appears arbitrary, unreasonable, or even in bad faith. In these cases, courts also seem to conflate the second component of 2000cc(a)(1) -that a substantial burden must render religious exercise effectively impracticable.

App. 57 whether a compelling government interest exists -with the substantial burden requirement. In Sts. Constantine & Helen, for example, the Seventh Circuit noted that the repeated legal errors by the Citys officials casts doubt on their good faith, and described the mayor of the City of New Berlin as playing a delaying game. 369 F.3d at 899; see also Guru Nanak Sikh Soc. of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 991 (9th Cir. 2006) (finding substantial burden where the plaintiffs history with the defendant county suggested that any further attempts could very well be in vain). As much as plaintiffs purport to have done so, they fail to offer similar evidence here that would allow a reasonable trier of fact to find that the delay, uncertainty, and expense incurred was the result of defendants bad faith. At most, plaintiffs contend that the defendants mislead them by suggesting that rezoning was not required and that the Bible camp could be built on the Subject Property with conditional use permits. Plaintiffs argument, however, is based on a refined, even strained, parsing of certain statements by Town and County officials, while the full exchanges simply do not support a finding of bad faith or gamesmanship on the part of defendants.19 Specifically, plaintiffs latch onto the following language in a June 13, 2006, Staff Report: But with

In particular, plaintiffs have failed to put forth evidence of bad faith like that at issue in Fortress Bible Church v. Feiner, 694 F.3d 208, 214, 218 (2d Cir. 2012) (describing evidence of Board members comments that they did not want the property to be used as a church and raising concerns about tax-exempt status of church).

19

App. 58 reasonable accommodation by the petitioner, Town and the County, the petitioner could achieve most if not all of its objectives under the existing zoning districts. (Countys MSJ, Ex. 32 (dkt. #63-32) 4.)20 Importantly, however, plaintiffs omit other critical language: Neither land use classifications [governing the Subject Property] allow for the proposed recreation camp proposal. (Id.) A fair reading of this report and other exchanges between the parties during the rezoning petition demonstrates that County officials were simply noting -- as this court has noted -- that plaintiffs could exercise their religious beliefs on the Subject Property, but not necessarily by means of a year-round Bible camp. Plaintiffs also take issue with defendants delay in deciding their CUP application, specifically arguing that defendants should have rejected the application at the outset, rather than after prolonged deliberations, given their position that the planned Bible camp was not an allowed use on the Subject Property. The real issue here seems to be the Countys requirement that a CUP applicant obtain certain permits before the application can be deemed complete and only then subject to review by County officials. While the court could certainly see the value of the kind of practical, initial screening by the County advocated by plaintiffs, the Countys approach of requiring applicants to pass state agency permit hurdles before review is not unreasonable and certainly does not support a finding
Similar language about plaintiffs being able to achieve most or all of their stated objectives is also in the minutes from the Planning and Zoning Committees June 14, 2006, hearing. (Countys MSJ, Ex. 31 (dkt. #63-31) 6.)
20

App. 59 of a bad faith delay. Indeed, around the time the County deemed plaintiffs CUP application complete, the County Zoning Department warned plaintiffs that it did not expect to recommend approval of the permit to the Planning and Zoning Committee, because the proposed use was not permitted by or consistent with the zoning of the property. (Countys MSJ, Ex. 47 (dkt. #63-47) 3-4.) Moreover, the final decision, including the denial of the appeal by the Board of Adjustment, was issued less than one year after the CUP application was deemed complete. The court does not doubt, and defendants do not dispute, that plaintiffs expended considerable time and money in pursuit of the rezoning petition and CUP application, but this is not enough to entitle them to relief under RLUIPAs substantial burden provision. CLUB, 342 F.3d at 762. Regardless of whether plaintiffs experienced delay, uncertainty and expense, the Seventh Circuit reiterated in Vision Church -- a case post-dating Sts. Constantine & Helen -- the test first announced in CLUB: that a substantial burden is one that renders religious exercise effectively impracticable. Vision Church, 468 F.3d at 997. Here, too, defendants land use regulations fall short of this standard. As discussed above, plaintiffs here are able to engage in religious exercise on the Subject Property, not to mention alternative sites which could accommodate a Bible camp. While plaintiffs reject any alternative site for various reasons, the real impediment to plaintiffs plan seems to be the scope of their vision, rather than the constraints of defendants land use regulations. In particular, the aspects of the planned Bible camp that seem most troubling to the Town and County are

App. 60 fairly categorized as secular in nature. The Overall Site Plan, depicted below and submitted with the amended CUP application, calls for a large parking lot, extensive recreational fields, a beach, a large enough lake to accommodate water sports, and a train car similar in size to a single-level Amtrak passenger rail car:

App. 61

App. 62 (Countys MSJ, Ex. 44 (dkt. #63-44).) In keeping with the sheer size of these various amenities, (1) the planned number of campers, visitors and other guests at the Bible camp at any given time would exceed 50% of the Towns population, and (2) the proposed lodge -a 106,000 square foot facility with a footprint in excess of 42,000 square feet -- would be the largest building in the Town. Placing reasonable constraints on the size, nature and duration of camp activities cannot constitute a substantial burden on religious exercise simply because this particular, large proposed recreational camp has a religious purpose. Other courts have rejected similar claims that zoning limitations on the size or the secular aspects of a project could alone implicate the substantial burden provision of RLUIPA. For example, in Vision Church, the Seventh Circuit considered the denial by a village of some 6,000 persons of a churchs application for a planned 99,000 square foot church facility with five main buildings and an over 1,000 seat sanctuary. 468 F.3d at 981-82. The court ultimately found credible concerns about the effect of such a large complex on the villages character, rejecting the notion that there was a triable issue of fact with respect to whether the size, capacity and other restrictions imposed by the Ordinance constitute a non-incidental, substantial burden on the exercise of religion. Id. at 999. Specifically, the court could not fathom a situation is which limiting the church to a three-building, 55,000-square foot facility would impose an unreasonable and substantial burden on religious exercise. Id. at 1000; see also Grace United Methodist Church v. City of Cheyenne, 451 F.3d 643, 662 (10th Cir. 2006) (affirming jury verdict finding citys denial of

App. 63 churchs conditional use application to build a 100-child daycare center in a low-density residential zone did not constitute a substantial burden on religious exercise even though daycare intended to have a religious education component); Westchester Day Sch. v. Vill. of Mamaroneck, 386 F.3d 183, 189 (2d Cir. (holding that villages zoning ordinances did not substantially burden an Orthodox Jewish school seeking to expand its facilities for secular education purposes). Having failed to even pursue a more modest recreational camp before coming into court, particularly where allowed by existing zoning and CUPs, plaintiffs fall well short of proving a substantial burden on their exercise of religion.21 Plaintiffs free exercise claim under the First Amendment of the United States Constitution and claim under the Wisconsin Constitution Article 1, 18 fail for the same reasons their RLUIPA substantial burden claim fails.22 See Vision Church, 468 F.3d at
Even if these zoning regulations were found to impose a substantial burden on religious exercise, a rural Countys and small Towns interest in managing the sheer size, duration and facilities of such a large undertaking may well constitute a compelling government interest.
22 21

Article 1, 18 of the Wisconsin Constitution provides: The right of every person to worship Almighty God according to the dictates of conscience shall never be infringed; nor shall any person be compelled to attend, erect or support any place of worship, or to maintain any ministry, without consent; nor shall any control of, or interference with, the rights of conscience be permitted, or any preference be given by law to any religious establishments or modes of worship; nor shall any money

App. 64 996 (collapsing the plaintiffs claims because both the Free Exercise Clause and RLUIPA provide that, if a facially-neutral law or land use regulation imposes a substantial burden on religion, it is subject to strict scrutiny); see also Coulee Catholic Schs. LIRC, 2009 WI 88, 60, 768 N.W.2d 868, 768 N.W.2d 868 (applying compelling state interest/least restrictive alternative test to a claim that a freedom of conscience claim, which requires the plaintiff to prove (1) that it has a sincerely held religious belief, and (2) that such belief is burdened by the application of the state law at issue. Upon this showing, the burden shifts to the state to prove (3) that the law is based upon a compelling state interest (4) that cannot be served by a less restrictive alternative.). IV. RLUIPA Equal Terms Nondiscrimination Claims and

Plaintiffs also bring claims under RLUIPAs equal terms and nondiscrimination provisions. The equal terms provision provides: No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. 42 U.S.C. 2000cc(b)(1). RLUIPAs nondiscrimination provision states:

be drawn from the treasury for the benefit of religious societies, or religious or theological seminaries.

App. 65 No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. 42 U.S.C. 2000cc(b)(2). The equal-terms section is violated whenever religious land uses are treated worse than comparable nonreligious ones, whether or not the discrimination imposes a substantial burden on religious uses. Digrugilliers v. Consol. City of Indianapolis, 506 F.3d 612, 616 (7th Cir. 2007). In an en banc decision, the Seventh Circuit held that if a religious and nonreligious use though different in many respects, do not differ with respect to any accepted zoning criterion, then an ordinance that allows one and forbids the other denies equality and violates the equal-terms provision. River of Life Kingdom Ministries v. Vill. of Hazel Crest, Ill., 611 F.3d 367, 371 (7th Cir. 2010). The River of Life court offered some examples of accepted zoning criteria: sufficiency of parking space, vehicular traffic flows, ability to generate municipal revenue, and ability to provide ample and convenient shopping for residents. Id. at 373. Relying on case law from the Eleventh Circuit, the Seventh Circuit has also identified three distinct kinds of Equal Terms statutory violations: (1) a statute that facially differentiates between religious and nonreligious assemblies or institutions; (2) a facially neutral statute that is nevertheless gerrymandered to place a burden solely on religious, as opposed to nonreligious, assemblies or institutions; or (3) a truly neutral statute that is selectively enforced against religious, as opposed to nonreligious assemblies or institutions. Vision Church, 468 F.3d at 1003

App. 66 (quoting Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d 1295, 1308 (11th Cir. 2006)). Plaintiffs proof falls under none of these categories. The Zoning Code does not facially differentiate between religious and nonreligious assemblies or institutions; nor is there any evidence of gerrymandering or selective enforcement. In fact, the County has previously granted rezoning petitions for applications with a religious use or purpose, including: A petition filed by the YMCA in 2007 seeking to rezone land zoned Single Family Residential and Rural Residential to Forestry 1-A in connection with an outdoor camping program. A petition filed by the Holy Family Catholic Church in 2005 seeking to rezone land zoned Single Family Residential to Business B-2 for the purpose of selling the land so that the church could purchase new land to construct a church, and a separate petition to rezone different land zoned Single Family Residential to Multiple Family Residential. A petition in 2001 seeking to rezone land adjacent to plaintiff CLBF zoned Single Family Residential to Recreational to allow an expansion of the camp. The County also has previously granted CUPs for religious land uses, including the following: A CUP in 1994 to the Faith Evangelical Free Church for the Construction of a new church on

App. 67 land zoned Single Family Residential in the Town of Woodruff. A CUP in 2002 to the Faith Evangelical Free Church for the addition of classrooms and a gymnasium to their existing church on land zoned Single Family Residential in the Town of Woodruff. A CUP in 2005 to the Northwoods Unitarian Fellowship, Inc. for the construction of an addition to an existing church on land zoned Single Family Residential in the Town of Woodruff. A CUP in 2006 to the Holy Family Catholic Parish for the construction of a new church on land zoned Single Family Residential in the Town of Woodruff. Given these examples, plaintiffs concede that they cannot say that the County would have made different decisions regarding the proposed Bible camp had it been secular in nature. In fact, plaintiffs are not aware of any evidence indicating that the County was influenced by any community opposition based on hostility toward plaintiffs religion or the religious aspects of the proposed use; offering only the fact that the minutes of the June 14, 2006, Planning and Zoning Committee meeting indicate that the public was overwhelming[ly] opposed to the rezone. (Countys MSJ, Ex. 31 (dkt. #63-31) 8, 4; id., Ex. 57 (dkt. #63-57) 5.)23 In the absence of some evidence that a
Plaintiffs also point to an isolated remark by one of the County Planning and Zoning Committee members. In advance of the April
23

App. 68 nonreligious (or even different religious) entity would have been treated differently, the court will grant summary judgment to defendants on plaintiffs claim under RLUIPAs nondiscrimination provisions. See World Outreach, 591 F.3d at 538 (affirming dismissal because there was no indication that a nonreligious entity would have been treated differently). In light of these undisputed facts, plaintiffs principal challenge seems to be with the treatment of Bible camps in particular, arguing that Bible camps are not different from other, permissible secular uses with regard to any accepted criteria under the Zoning Code. However, the most closely comparable use -purely recreational camps -- is also not allowed on the Subject Property. In that way, religious (Bible camps) and nonreligious (secular recreational camps) uses are treated the same under the Zoning Code. See Vision Church, 468 F.3d at 1001 ([L]ike churches, schools also are not permissible uses in residential districts, demonstrating that the distinction between permissible and special uses is not rooted in animosity towards religious institutions.).

29, 2009, public hearing on the CUP application, a female member of the staff of the Planning and Zoning Committee overheard Committee member Greshner making the following comment described by her as snide with respect to the religion of the plaintiffs: dont let [the public hearing] turn into a Bible lesson . . . . (Pls. PFOFs, Ex. 9 (dkt. #77-9) at 49.) However unfortunate, this isolated remark is not by itself sufficient to raise a genuine issue of material fact as to whether the County or Town harbored discriminatory animus toward plaintiffs, particularly in the face of overwhelming evidence that the opposition was motivated by concerns over the size and year-round nature of the proposed camp.

App. 69 Plaintiffs also argue that the so-called differential treatment of Bible camps as compared to institutionalized churches violates RLUIPAs nondiscrimination provision. Again, however, plaintiffs offer no evidence of discrimination based on plaintiffs religion; rather, the discrimination, if any, is between plaintiffs use of the Property for a church rather than a Bible camp, a difference in treatment not covered by RLUIPA. V. Equal Protection Claim Though the claim obviously overlaps with the equal terms and nondiscrimination claims under RLUIPA, plaintiffs separately allege a violation of the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. The court has already found that the County Zoning Code does not discriminate on the basis of religion. As in CLUB, Whatever the obstacles that the [Zoning Code] might present to a churchs ability to locate on a specific plot of Chicago land, they in no way regulate the right, let alone interfere with the ability, of an individual to adhere to the central tenets of his religious beliefs. 342 F.3d at 766. As such, rational basis review is appropriate. See CLUB, 342 F.3d at 766; Vision Church, 468 F.3d at 1001. To pass rational basis review, plaintiffs must demonstrate governmental action wholly impossible to relate to legitimate governmental objectives. Vision Church, 468 F.3d at 1001 (quoting Patel v. City of Chi., 383 F.3d 569, 572 (7th Cir. 2004)). For the same reasons plaintiffs equal terms claim fails, plaintiffs claim under the equal protection clause of the Fourteenth Amendment fails. Petra Presbyterian

App. 70 Church v. Vill. of Northbrook, 489 F.3d 846, 849 (7th Cir. 2007) (The less than equal terms provision of RLUIPA codifies the constitutional prohibition.).24 VI. ADA and Rehabilitation Act Claims

Plaintiffs allegations of violations of the Americans With Disabilities Act (ADA), 42 U.S.C. 12131 et seq., and the Rehabilitation Act, 29 U.S.C. 701 et seq., fair no better, and for the same basic reason -- a lack of evidence. Both acts prohibit discrimination against qualified persons with disabilities. 42 U.S.C. 12132 (no qualified individual with a disability shall, by reason of such disability, be excluded from participation in, or be denied the benefits of the services, programs, or activities of a public entity.); 29 U.S.C. 794(a) (No otherwise qualified individual with a disability in the United States . . . shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance . . . .). The Rehabilitation Act provides that the ADA standards are to be applied to determine whether the Rehabilitation Act has been violated. 29 U.S.C. 794(d); see also Washington v. Ind. High Sch. Athletic Assn, Inc., 181 F.3d 840, 845 n.6

Plaintiffs do not allege, nor does the evidence suggest, that they were the target of deliberate, irrational discrimination, that has nothing to do with their religion. See World Outreach, 591 F.3d at 538 ( What is true, however, is that a deliberate, irrational discrimination, even if it is against one person (or other entity) rather than a group, is actionable under the equal protection clause. . . . It has nothing to do with religion, but so what?).

24

App. 71 (7th Cir. 1999) (We have held previously that the standards applicable to one act are applicable to the other.). Therefore, the court will consider these two claims together. Plaintiffs first considered the possibility of serving disabled campers in late 2008 or early 2009. Except for a reference to serving children with medical disabilities by Mike Jewell, the Executive Director at CLBF, at the April 29, 2009, public hearing before the Planning and Zoning Committee, however, plaintiffs did not raise this purpose in their rezoning petition, CUP application, amended CUP application, or appeal to the County Board of Adjustment.25 Plaintiffs even concede that there is reason to believe the County would have come to the same decisions regarding the proposed Bible camp had plaintiffs not wished to serve, among others, disabled campers. (Pls. Resp. to Defs. PFOFs (dkt. #93) 276.) Absent some evidence that the alleged discrimination was because of the disability of proposed campers, plaintiffs ADA and Rehabilitation claims cannot survive summary judgment. Serwatka v. Rockwell Automation, Inc., 591 F.3d 957, 962 (7th Cir. 2010) (liability attached under the ADA only for decisions made because of a persons disability).

Plaintiffs also point to a reference in the CUP application about requiring wider paths to the shoreline. (See dkt. #94 at 286.) Even in combination with Mr. Jewells early allusion to the possibility of serving children with medical disabilities, this reference falls unreasonably short of a finding that defendants were on notice of plaintiffs intent to serve disabled children.

25

App. 72 VII. State Law Claims

Because the court has found that defendants are entitled to summary judgment on plaintiffs federal claims, the court would typically not decide plaintiffs state law claims on the merits, but instead would dismiss those claims without prejudice to be refiled in state court. This practice is consistent with the well-established law of this circuit that the usual practice is to dismiss without prejudice state supplemental claims whenever all federal claims have been dismissed prior to trial. Groce v. Eli Lilly & Co., 193 F.3d 496, 501 (7th Cir. 1999); see also 28 U.S.C. 1367(c)(3) (The district courts may decline to exercise supplemental jurisdiction over a claim under subsection (a) if the district court has dismissed all claims over which it has original jurisdiction.). A court may depart from usual practice and continue to exercise supplemental jurisdiction if the circumstances weigh in favor of such action. For example, a court need not send back to state court doomed litigation that will only be dismissed once it gets there. Groce, 193 F.3d at 502. In such circumstances, the district court should retain supplemental jurisdiction because when a state-law claim is clearly without merit, it invades no state interest -- on the contrary, it spares overburdened state courts additional work that they do not want or need -for the federal court to dismiss the claim on the merits, rather than invite a further, and futile, round of litigation in the state courts. In re Repository Tech., Inc., 601 F.3d 710, 725 (7th Cir. 2010) (internal quotation omitted).

App. 73 Here, plaintiffs claim for violation of the Wisconsin Constitutions Free Exercise Clause, Article I, 18, is indeed doomed for all the same reasons as its federal constitutional equivalent, and no purpose will be served and unnecessary resources will be expended by this court failing to exercise its supplemental jurisdiction over this claim. Indeed, plaintiffs offer no plausible argument that the protections offered Wisconsin citizens under Article I, 18, are in any way greater than its federal counterpart, much less RLUIPAs additional protections. Accordingly, judgment will be entered against plaintiffs on the merits of that claim.26 Plaintiffs state certiorari claim is different. While likely to fail under the restrictive standard imposed for certiorari review of a municipal bodys determination -and the factual and legal issues are sufficiently different from the others considered in this case -- the claim is sufficiently unique to state law that the court will not retain supplemental jurisdiction over this state law claim unless defendants are unwilling to waive any statute of limitation defense they may have in state court by virtue of plaintiffs choosing to file in this court first.

26

By virtue of the Wisconsin Legislatures enactment of Wis. Stat. 893.80, the county defendants also argue they are immune from suit under Article I, 18. The court need not, and does not, reach this issue.

App. 74 ORDER IT IS ORDERED that: 1) plaintiffs motion for a hearing on the motions for summary judgment (dkt. #105) is DENIED; 2) defendant Town of Woodboros motion in limine (dkt. #150) is DENIED; 3) plaintiffs motion for leave to file notice of supplemental authorities (dkt. #152) is DENIED AS MOOT; 4) plaintiffs motion for partial summary judgment (dkt. #55) is DENIED; 5) defendant County of Oneidas motion for summary judgment (dkt. #46) is GRANTED IN PART and defendant Town of Woodboros motion for summary judgment (dkt. #56) is GRANTED IN PART; a. with respect to all of plaintiffs federal claims (both statutory and constitutional), defendants motions for summary judgment are GRANTED; and b. with respect to plaintiffs Wisconsin Constitution Article I, Section 18 claim, defendants motions for summary judgment are GRANTED; and 6) The court dismisses plaintiffs remaining state law certiorari review claim without prejudice, having declined to exercise supplemental jurisdiction over it unless defendants are unwilling to waive any statute of limitation

App. 75 defense they may have in state court by virtue of plaintiffs choosing to file in this court first. 7) The clerk of the court is directed to enter judgment consistent with this order and close this case. Entered this 1st day of February, 2013. BY THE COURT: /s/ ________________________________________ WILLIAM M. CONLEY District Judge

App. 76

APPENDIX C IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WISCONSIN Case No. 10-cv-118-wmc [Filed February 5, 2013] _______________________________________________ EAGLE COVE CAMP & CONFERENCE CENTER INC., a Wisconsin non-stock corporation; ARTHUR G. JAROS, JR., individually and as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust, and as trustee of the Arthur G. Jaros, Sr. Declaration of Trust, and as trustee of the Dawn L. Jaros Declaration of Trust; WESLEY A. JAROS, as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust; RANDALL S. JAROS, individually and as co-trustee of the Arthur G. Jaros, Sr. and Dawn L. Jaros Charitable Trust; CRESCENT LAKE BIBLE FELLOWSHIP, a Wisconsin non-stock corporation; and KIM WILLIAMSON, Plaintiffs, v. TOWN OF WOODBORO, Wisconsin, a body corporate and politic; COUNTY OF

) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) )

App. 77 ONEIDA, Wisconsin, a body corporate; and ONEIDA COUNTY BOARD OF ADJUSTMENT, Defendants. _______________________________________________ JUDGMENT IN A CIVIL CASE This action came for consideration before the court, District Judge William M. Conley presiding. The issues have been considered and a decision has been rendered. IT IS ORDERED AND ADJUDGED that judgment is entered in favor of defendants Town of Woodboro, Wisconsin, County of Oneida, Wisconsin, and Oneida County Board of Adjustment granting defendants motions for summary judgment and dismissing all of plaintiffs federal claims, both statutory and constitutional, and dismissing plaintiffs Wisconsin Constitution Article I, Section 18 claim. IT IS FURTHER ORDERED AND ADJUDGED that judgment is entered dismissing plaintiffs remaining state law certiorari review claim without prejudice, the court having declined to exercise supplemental jurisdiction over it. /s/________________________ Peter Oppeneer, Clerk of Court 2/5/13 Date ) ) ) )

App. 78

APPENDIX D UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT Chicago, Illinois 60604 No. 13-1274 [Filed December 10, 2013] ____________________________________________ EAGLE COVE CAMP & CONFERENCE ) CENTER, INC., et al., ) Plaintiffs-Appellants ) ) v. ) ) TOWN OF WOODBORO, WISCONSIN, ) ONEIDA COUNTY, WISCONSIN, and ) ONEIDA COUNTY BOARD OF ADJUSTMENT,) Defendants-Appellees. ) ____________________________________________ ) Appeal from the United States District Court for the District of Wisconsin, Western Division. No. 3:10-cv-00118-wmc William M. Conley, Chief Judge. Before MICHAEL S. KANNE, Circuit Judge ANN CLAIRE WILLIAMS, Circuit Judge JOHN DANIEL TINDER, Circuit Judge

App. 79 ORDER On consideration of the petition for rehearing and rehearing en banc, no judge in active service has requested a vote on the petition for rehearing en banc and the judges on the panel have voted to deny rehearing. It is, therefore, ORDERED that rehearing and rehearing en banc are DENIED.

App. 80

APPENDIX E DECISION of the ONEIDA COUNTY BOARD OF ADJUSTMENT Post Office Box 400, Rhinelander, WI 54501-0400 FINDINGS OF FACT Case No: Appeal Date: Public Notice Dates: Certificates of Publication: Site Inspection Date: Public Hearing Dates: 1. The Appellants are: 09-005 September 16, 2009 On file On file No site inspection was conducted December 1, 2009 and January 12, 2009

Eagle Cove Camp and Conference Center, Inc., a Wisconsin non-stock corporation (f/k/a Squash Lake Christian Camp, Inc.); Arthur G. Jaros, Jr., Wesley A. Jaros and Randall S. Jaros, as Co-Trustees of the Arthur G. Jaros, Sr,. and Dawn L. Jaros Charitable Trust; Arthur G. Jaros, Jr., as Trustee of the Arthur G. Jaros, Sr., Declaration of Trust; and Arthur G. Jaros, Jr., as Trustee of the Dawn L. Jaros Declaration of Trust; 1200 Harger Road, Suite 830, Oak Brook, Ill 60523. 2. The Appellants were represented by Attorney Arthur G. Jaros, Jr. and Attorneys Roman P. Storzer and Robert L. Greene with Attorney Lillian Bearns, of Storzer & Greene, P.L.L.C. Oneida County (the

App. 81 County) was represented by Corporation Counsel Brian Desmond and Attorney Andrew A. Jones of Whyte Hirschboeck Dudek, S. C. The Town of Woodboro was represented by Attorney Gregory J. Harrold of Harrold, Scrobell & Danner, S.C. Ms. Janet Appling, treasurer of the Squash Lake Association, represented the Association. Attorney John M. Bruce of Schober Schober & Mitchell, S.C., served as independent legal counsel to the Board of Adjustment (the BOA). 3. The properties involved in this appeal are identified as follows: Property Owners: As identified in Section 1 above. Property Locations: p/o Govt Lots 2, 3 and 4, and p/o SW NW, all in Section 24, T36N, R7E Parcel ID Numbers: 354-12, 355-1, 356-3, 356-4, 356, 357, 357-5, 357-4 Town of Woodboro, Oneida County Property Address: Fire number not asgd, US H i g h w a y W e s t , Rhinelander, WI 54501 Total Property Area: 58.1 acres Total Lake Frontage: 2 4 0 2 f e e t ( a p p r o x ) o n Squash Lake Zoning District(s): 53.72 acres, District 2, Single Family Residential 4.38 acres, District 4, Residential and Farming 4. Appellants appealed to the BOA a decision on July 29, 2009 by the Oneida County Planning and Zoning Committee (the Committee) to deny the Appellants application for a conditional use permit

App. 82 (CUP) for a Bible camp and conference center to be located on the property identified above. Section 17.04(1), BOA Rules of Procedure, Chapter 17, Oneida County Code, provides that, on appeals from actions of the Committee, ... the Board shall ... render an independent de novo decision. Therefore the appeal was considered by the BOA as an application for a CUP. 5. Appellants asserted that they were entitled to develop and operate the proposed facility at the desired location in order to freely exercise their religion on their privately owned lands as specifically enforced by the Federal Religious Land Use and Institutionalized Persons Act of 2000, 42 USC (RLUIPA). Pertinent portions of Sec 2 of RLUIPA read as follows: GENERAL RULE-No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution--(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. EQUAL TERMS-No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. NONDISCRIMINATION-No Government shall impose or implement a land use regulation

App. 83 that discriminates against any assembly or institution on the basis of religion or religious denomination. EXCLUSIONS AND LIMITS- No government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. 6. RLUIPA Sec. 5(e) states GOVERNMENTAL DISCRETION IN ALLEVIATING BURDENS ON RELIGIOUS EXERCISE-A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden. 7. As a result of communication among counsel for the BOA and the Appellants, and with interested parties or their attorneys, it was agreed that the BOA would address and decide two issues prior to any site inspection or evidentiary hearing in the appeal. At a public meeting on November 10, 2009 the BOA agreed to this procedure, and that the two preliminary issues to be determined were as follows: a. May the Board find, in this case, that the Oneida County Zoning and Shoreland Protection Ordinance (the Ordinance) violates the Federal Religious Land Use and Institutionalized

App. 84 Persons Act of 2000 (RLUIPA), or, alternatively, based on RLUIPA, may the Board, in this case, approve an exemption to the Ordinance? b. Is the proposed Camp & Conference Center an allowed conditional use within the meaning of Sec. 9.22(D)(10) of the Ordinance, i.e. a church, school, library, community building or museum? 8. The BOA further decided at its November 10, 2009 meeting that it would hold a public hearing regarding these issues on December 1, 2009. 9. The BOA through its counsel invited the Appellants, the County, the Town of Woodboro and the Squash Lake Association to submit written letter briefs addressing those issues. In response, briefs were submitted prior to the December 1, 2009 hearing. 10. At the hearing on December 1, 2009, the BOA heard oral argument from the Appellants, the County, the Town of Woodboro and the Squash Lake Association, and heard public comment, regarding the preliminary issues. In addition, by motions made, seconded and duly adopted by the BOA, the record of previous action on the Appellants CUP application by the Planning and Zoning Department and the Committee was entered into the record, as were written comment and materials presented at the hearing and the written briefs submitted prior to the hearing. After such argument and comments, the public hearing was closed, and on motion duly made, seconded and adopted, the BOA adjourned to meet and deliberate on January 12, 2010.

App. 85 11. As described in the CUP application and further explained at the hearing on December 1st, the proposed use of the property would be as a year-around Bible camp and conference centeralong the shore of the 396 acre Squash Lake. It would have a single principal structure (lodge). The camp would include, but not be limited to, lodging; chapel; classrooms and conference center; commercial kitchen, cafeteria and dining hall; gymnasium; soccer field, baseball field, archery range; and swimming, boating and water skiing facilities. A self-propelled train would transport persons to the lodge from a visitors center just off US Highway 8. Several hundred persons could be in residence at any one time. Evidence was submitted that the proposed use must be licensed as a recreational/educational camp by the State of Wisconsin. 12. At the BOA hearing on December 1, 2009, Appellants took the position that the BOA did not have the authority to repeal applicable ordinances of the County nor to amend those ordinances. This was also the position of the County and the Town of Woodboro. It is consistent with court rulings in Kmiec v. Town of Spider Lake, 60 Wis.2d 640, 211 N.W.2d 471 (1973) and Ledger v. Waupaca Board of Appeals, 430 N.W.2d 370 (Ct App. 1988). 13. Sec. 17.01(9) of the Oneida County Code of Ordinances, Chapter 17, BOA Rules of Procedure, states: Nothing herein shall be constroed to give or grant to the Board the authority to alter or change the zoning ordinance or zoning or other official maps of the County, which authority is reserved to the County Board of Supervisors.

App. 86 14. Sec. 9.80(A) of the Ordinance states that The Oneida County Board of Supervisors is responsible for the enactment, amendment and repeal of the Oneida County Zoning and Shoreland Protection Ordinance. 15. The Appellants desire to locate the proposed camp and conference center primarily in Zoning District 2, Single Family Residential. Section 9.22(A) of the Ordinance specifies that The purpose of the Single Family Residential District is to provide an area of quiet seclusion for families. This is the Countys most restrictive residential zoning classification. Motor vehicle traffic should be infrequent and people few. Sec. 9.22(D) of the Ordinance allows the following uses in District 2 upon issuance of a CUP: 1. Churches, schools, libraries, community buildings and museums. 2. Community living arrangements with nine or more residents. The County may review the CUP after issuance, pursuant to Sec. 59.69, Wis. Stats. 3. Governmental uses. 4. Bed and breakfast establishments with three or more guest rooms. 5. Public parks and playgrounds. 6. Preexisting, licensed resorts, hotels, motels and tourist rooming houses, individual unit replacements or expansions consistent with the number and/or square footage permitted under Appendix (to the Ordinance). 16. The Ordinance does not define the words church or school. It does define recreation camps as areas of land improved with buildings or tents, and sanitary facilities used for the accommodation of groups for educational or recreational purposes. Recreational

App. 87 camps have not previously been allowed by the County in the zoning districts in which this property is located. However, recreational camps, whether secular or religious, are allowed, and do exist, in other zoning districts in the County. 17. Appellants indicated that they do not desire to operate a church or school, but, rather, propose to operate a bible camp and conference center on the property. Appellants argued, however, that their proposed use of the property could be construed as a church or school under the Ordinance. The County, Town of Woodboro and the Squash Lake Association argued to the contrary. 18. At its meeting on January 12, 2010, the BOA deliberated and, on motions duly made, seconded and adopted, by unanimous vote orally made its determinations with respect to the preliminary issues to be addressed, with a specific written decision to be approved at a public meeting on February 11, 2010. CONCLUSIONS OF LAW 19. Based on the written and oral arguments made and the entire record in this matter, the BOA concludes the following: a. The BOA has no authority to repeal or amend the Ordinance nor to determine the constitutionality of that Ordinance. This is clear from the language of the Ordinance itself, which reserves such authority in the Oneida County Board of Supervisors, and is consistent with Wisconsin case law. b. The BOA is obligated to apply RLUIPA in rendering its decision in this appeal.

App. 88 c. The BOA has authority under RLUIPA to change a policy or practice that results in a substantial burden on religious exercise, ... by providing exemptions from the policy or practice for applications that substantially burden religious exercise ... d. Given the nature and extent of the proposed use taken as a whole, and especially the fact that it is to provide overnight lodging and a campground for hundreds of persons in addition to conference facilities, a chapel and classrooms, commercial meal services and a cafeteria, and executive facilities for various forms of indoor and outdoor recreational activity, the proposed use cannot reasonably be deemed either a church or a school, even on a broad interpretation of those words. To interpret such words to include the proposed use in its entirety would be inconsistent with the clearly stated intent of Zoning District 2 in which the great majority of the proposed use is to be located, i.e., a single family residential district. By the terms of the Ordinance, the stated purpose of District 2 is to provide an area of quiet seclusion for families, and that the district is the countys most restrictive residential zoning classification. The BOA concludes that Zoning District 2 does not contemplate a use of the nature or extent described in the CUP application as a conditional use, regardless of whether such a use is secular or religious. The proposed use is more accurately considered a recreational camp as defined by the Ordinance and licensed by the State as a recreational/educational camp. That is not a use allowed as a permitted or conditional use in either Zoning Districts 2 or 4.

App. 89 e. Zoning District 2, Single Family Residential, does not prohibit religious exercise, as it allows for use of property for a church or school upon issuance of a CUP in that district. f. The Appellants have not demonstrated that Sec. 9.22 of the Ordinance imposes a substantial burden on religious exercise. The terms of the Ordinance are not such as would impose a direct, primary and fundamental responsibility for rendering religious exercise impracticable in this case. The fact that the Ordinance does not allow for the operation of a religious camp and conference center of the kind proposed by Appellants in a single family residential district does not in itself establish that it imposes such a substantial burden, or that it violates RLUIPA in any other respect. RLUIPA does not require that Appellants be allowed to engage in religious exercise of the kind proposed by the Appellants on the specific property in question. There is no evidence that nonreligious uses allowed by the Ordinance as conditional uses are favored over religious uses. g. In this case, the Ordinance is not in violation of RLUIPA and no exemption from terms of the Ordinance is justified. h. The proposed use does not constitute a permitted conditional use in either Zoning District 2 or 4. Because an exemption to the Ordinance is not justified under RLUIPA, in this case the BOA cannot grant a CUP as requested by the Appellants. ORDER AND DETERMINATION 20. Based on the testimony, argument, evidence and record of this matter, and the above Findings of Fact

App. 90 and Conclusions of Law, the Oneida County Board of Adjustment orders that the conditional use permit application of the Eagle Cove Camp and Conference Center, Inc. is denied and the prior decision of the Oneida County Planning and Zoning Committee to deny the permit application is affirmed. CERTIFICATION OF DECISION 21. On February 11, 2010, by unanimous vote the Board approved this written decision drafted by Attorney John M. Bruce, independent counsel to the Board. FOR THE ONEIDA ADJUSTMENT: COUNTY BOARD OF

/s/_________________________________ ELMER A. GOETSCH Secretary Copies furnished: Appellants, Attorney Arthur G. Jaros, Jr.; Wesley A. Jaros; Randall S. Jaros; Oneida County Planning & Zoning Committee; Oneida County Zoning Director; Oneida County Corporation Counsel Brian Desmond; Attorney Andrew A. Jones; Attorney Roman P. Storzer; Attorney Robert L. Greene; Attorney Gregory J. Harrold; Squash Lake Association; DNR Northern Region, Members of Board of Adjustment; Attorney John M. Bruce; Town of Woodboro Clerk; Rhinelander Daily News; Lakeland Times; Vilas County News-Review; Hodag Buyers Guide/Our Town; WOBT/WRHN Radio; WHDG Radio; WXPR Public Radio; WJFW TV-12.

App. 91

APPENDIX F Oneida County Planning & Zoning Department Courthouse Building PO Box 400 Rhinelander WI 54501-0400 Telephone 715/369-6130 FAX 715/369-6268 Email: zoning@co.oneida.wi.us CERTIFIED MAIL RETURN RECEIPT REQUESTED August 19, 2009 Arthur G. Jaros, Jr. 1200 Harger Rd. Oak Brook, IL 60523 RE: Your Conditional Use Permit Application consisting of the development of a religious bible camp identified as Eagle Cove Camp and Conference Center for property on Squash Lake, further identified as part of Govt Lots 2, 3 and 4 and part of the SW NW, Section 24, T36N, R7E, PIN#s 354-12, 355-1, 356-3, 356-4, 356, 357, 357-5 and 357-4 all in the Town of Woodboro.

Dear Mr. Jaros: As you are aware the Oneida County Planning and Zoning Committee held a public hearing on your Conditional Use Permit Application on April 29, 2009.

App. 92 The Committee also performed an on-site inspection of your property on June 26, 2009. The Planning and Zoning Committee met today and finalized their decision to deny your Conditional Use Permit Application. Their decision is based on the Findings of Facts included in the attachment. If you wish, you may appeal the denial of your application to the Oneida County Board of Adjustment. The form is enclosed and the appeal fee is $500.00. If you intend to appeal you must have the completed form in the office no later than thirty days (30) in receipt of this letter. Sincerely, /s/ Karl Jennrich Karl Jennrich Zoning Director Cc: Brian Desmond, Oneida County Corporation Counsel Attorney Andrew Jones Attorney Greg Harrold Elmer Goetsch, Secretary Board of Adjustment Kurt Zalewski, Town of Woodboro Chairman ONEIDA COUNTY PLANNING AND ZONING COMMITTEE FINDINGS AND CONCLUSIONS EAGLE COVE CAMP AND CONFERENCE CENTER CONDITIONAL USE PERMIT APPLICATION WHEREAS, the applicant, through its agent, Arthur G, Jaros, Jr., originally submitted an

App. 93 application for a conditional use permit on December 28, 2006 seeking approval to construct a recreational camp (termed a religious bible camp by the applicant) on the subject property located in the Town of Woodboro, Oneida County; WHEREAS, the applicant thereafter provided further submissions to the Committee supplementing its original conditional use permit application on various dates through and including March 4, 2009; WHEREAS, the application was first deemed complete by the Planning & Zoning Department pursuant to 9.42(A) of the Oneida County Zoning Code on March 4, 2009; WHEREAS, an advisory recommendation was thereafter sought by the Committee from the Town of Woodboro pursuant to 9.42(B) of the Oneida County Zoning Code; WHEREAS, the Town of Woodboro provided a written advisory recommendation to the Committee on April 23, 2009 recommending that the Committee deny the requested conditional use permit application, which advisory recommendation is incorporated herein by reference; WHEREAS, the Committee held a duly noticed public hearing regarding the conditional use permit application pursuant to 9.42(B) of the Oneida County Zoning Code on April 29, 2009, at which public hearing the applicant, the Town, and members of the public were afforded the opportunity to address the Committee regarding the application;

App. 94 WHEREAS, the Committee determined on April 29, 2009 to extend the time for its review of the conditional use permit application to 180 days from March 4, 2009, the date on which the application was deemed complete, pursuant to 9.42(C)(1) of the Oneida County Zoning Code; WHEREAS, the Committee conducted an on-site inspection of the proposed project on June 26, 2009; WHEREAS, the Committee received a written staff report and recommendation from the Planning & Zoning Department on July 29, 2009, which report and recommendation is incorporated herein by reference; WHEREAS, the Committee held a duly noticed meeting on July 29, 2009 for the purpose of deliberating and making a final determination regarding the conditional use permit application; and WHEREAS, following the Committees deliberations, a motion was duly made and seconded to deny the conditional use permit application, which motion was then unanimously approved by the members of the Committee; NOW, THEREFORE, the Committee hereby adopts the following findings and conclusions based on its deliberations and decision to deny the conditional use permit application during its meeting of July 29, 2009: 1. With respect to Standard 1 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the majority of the Committee concludes that the

App. 95 establishment, maintenance, or operation of the proposed conditional use would not be detrimental to or endanger the public health, safety, morals, comfort, or general welfare; 2. With respect to Standard 2 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the majority of the Committee concludes that the uses, values and enjoyment of neighboring property would be substantially impaired or diminished by the establishment, maintenance, or operation of the proposed conditional use; 3. With respect to Standard 3 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the Committee unanimously concludes that the proposed conditional use would not be compatible with the use of adjacent land and any adopted local plans for the area. Specifically, and as discussed by the Committee, the land adjacent to the subject property is primarily zoned single family (District 2), and the nature and scope of the project, as ultimately proposed by the applicant, would not be compatible with such single family zoning. In addition, as discussed by the Committee, the Town of Woodboro has adopted a Comprehensive Land Use Plan, and the nature and scope of the project, as ultimately proposed by the applicant, would not be compatible with said Comprehensive Land Use Plan;

App. 96 4. With respect to Standard 4 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the majority of the Committee concludes that the establishment of the proposed conditional use would not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the applicable districts; 5. With respect to Standard 5 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the majority of the Committee concludes that adequate utilities, access roads, drainage, and other necessary site improvements have been or would be provided for the proposed conditional use; 6. With respect to Standard 6 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the Committee unanimously concludes that adequate measures have been or would be taken to provide ingress and egress to the proposed conditional use so as to minimize traffic congestion in the public streets; 7. With respect to Standard 7 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the

App. 97 Committee unanimously concludes that the proposed conditional use would not conform to the applicable regulations of the district in which it would be located. Specifically, and as discussed by the Committee, the subject property is zoned single family (District 2) and residential farming (District 4), and the nature and scope of the project, as ultimately proposed by the applicant, would not be compatible with such zoning. In this respect, the Committee notes and specifically approves of the discussion of this subject and the prior communications between the Committee and the applicant on this subject as set forth by the Department in its written staff report; 8. With respect to Standard 8 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, staff informed the Committee that the Planning & Zoning Department had concluded that the proposed conditional use would not violate any shoreland or floodplain regulations governing the subject property, and the Committee accepts the Departments conclusions; 9. With respect to Standard 9 under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code, and for the reasons discussed during the July 29, 2009 Committee meeting, the majority of the Committee concludes that adequate measures have been or would be taken to prevent and control water pollution, including sedimentation,

App. 98 erosion, and runoff with respect to the proposed conditional use; 10. For the above reasons, the Committee unanimously concludes that the denial of the conditional use permit application is warranted under the General Standards for Approval of a conditional use permit application as set forth in 9.42(E) of the Oneida County Zoning Code; 11. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that other locations exist in the County where the applicant could obtain approval to construct a recreational camp as proposed in the present application, whether religious or not; 12. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that a denial of the conditional use permit application would not make the religious exercise of the applicant effectively impracticable. Specifically, the Committee notes the availability of other land within the County where recreational camps, whether religious or not, are allowable uses and that uses such as churches and religious schools are allowable based on the current zoning of the subject property; 13. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that there are

App. 99 no alternative, less restrictive means of effectuating the reasons for a denial of the conditional use permit application; 14. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that religious uses are allowed in the zoning districts in place on the subject property. The Committee notes, for instance, that uses such as churches and religious schools are allowable based on the current zoning of the subject property; 15. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that the Oneida County Zoning Code does not treat religious land uses less favorably that nonreligious land uses; 16. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that the Zoning Code is not written in such a way as to effectively prevent religious land uses from locating in the County; 17. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that religious land uses are not excluded from the Town of Woodboro; 18. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report,

App. 100 the Committee unanimously concludes that Oneida County has previously granted conditional use permits allowing religious exercise in the zoning districts in place on the subject property; 19. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that Oneida County has not previously treated nonreligious recreational camps differently than religious recreational camps in applying the Oneida County Zoning Code; and 20. For the reasons discussed during the July 29, 2009 Committee meeting, and based on the information provided by the Department in its written staff report, the Committee unanimously concludes that the Zoning Code has not otherwise been selectively enforced against religious land uses. FURTHER, the Committee hereby directs the Department to provide written notice to the applicant of the denial of the subject conditional use permit application, attaching these Findings and Conclusions as the reasons for the denial and providing the applicant with notice of its right to appeal the denial to the Oneida County Board of Adjustment. Approved by the Planning and Zoning Committee this 19th day of August, 2009. Vote Required: Majority= _______ 2/3 Majority=______ Majority=______ Offered and passage moved by:

App. 101 /s/ Supervisor

/s/ Supervisor

/s/ Supervisor

/s/ Supervisor

/s/ Supervisor

App. 102

APPENDIX G CITATIONS TO CONSTITUTIONAL, STATUTORY AND REGULATORY PROVISIONS INVOLVED. United States Constitution, Amendment I: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. United States Constitution, Amendment XIV, Section 1: ...No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. 28 U.S.C. Section 1331: The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States. 28 U.S.C. Section 1343(a)(3) & (4): (a) The district courts shall have original jurisdiction of any civil action authorized by law to be commenced by any person:

App. 103 ... (3) To redress the deprivation, under color of any State law, statute, ordinance, regulation, custom or usage, of any right, privilege or immunity secured by the Constitution of the United States or by any Act of Congress providing for equal rights of citizens or of all persons within the jurisdiction of the United States; (4) To recover damages or to secure equitable or other relief under any Act of Congress providing for the protection of civil rights, including the right to vote. Civil Rights Act42 U.S.C. 1983: Every person who under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.... Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. 2000cc Protection of land use as religious exercise (a) Substantial burdens. (1) General rule. No government shall impose or implement a land use regulation in a manner that imposes a substantial burden on the religious exercise of a person, including a

App. 104 religious assembly or institution, unless the government demonstrates that imposition of the burden on that person, assembly, or institution-(A) is in furtherance of a compelling governmental interest; and (B) is the least restrictive means of furthering that compelling governmental interest. (2) Scope of application. This subsection applies in any case in which-(A) the substantial burden is imposed in a program or activity that receives Federal financial assistance, even if the burden results from a rule of general applicability; (B) the substantial burden affects, or removal of that substantial burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, even if the burden results from a rule of general applicability; or (C) the substantial burden is imposed in the implementation of a land use regulation or system of land use regulations, under which a government makes, or has in place formal or informal procedures or practices that permit the government to make, individualized assessments of the proposed uses for the property involved. (b) Discrimination and exclusion.

App. 105 (1) Equal terms. No government shall impose or implement a land use regulation in a manner that treats a religious assembly or institution on less than equal terms with a nonreligious assembly or institution. (2) Nondiscrimination. No government shall impose or implement a land use regulation that discriminates against any assembly or institution on the basis of religion or religious denomination. (3) Exclusions and limits. No government shall impose or implement a land use regulation that (A) totally excludes religious assemblies from a jurisdiction; or (B) unreasonably limits religious assemblies, institutions, or structures within a jurisdiction. Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. 2000cc-2 Judicial relief (a) Cause of action. A person may assert a violation of this Act as a claim or defense in a judicial proceeding and obtain appropriate relief against a government. Standing to assert a claim or defense under this section shall be governed by the general rules of standing under article III of the Constitution. (b) Burden of persuasion. If a plaintiff produces prima facie evidence to support a claim alleging a violation of the Free Exercise Clause or a violation

App. 106 of section 2 [42 USCS 2000cc], the government shall bear the burden of persuasion on any element of the claim, except that the plaintiff shall bear the burden of persuasion on whether the law (including a regulation) or government practice that is challenged by the claim substantially burdens the plaintiffs exercise of religion. (c) - (g) [Omitted] Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. 2000cc-3 2000cc-3. Rules of construction (a) Religious belief unaffected. Nothing in this Act shall be construed to authorize any government to burden any religious belief. (b) Religious exercise not regulated. Nothing in this Act shall create any basis for restricting or burdening religious exercise or for claims against a religious organization including any religiously affiliated school or university, not acting under color of law. (c) Claims to funding unaffected. Nothing in this Act shall create or preclude a right of any religious organization to receive funding or other assistance from a government, or of any person to receive government funding for a religious activity, but this Act may require a government to incur expenses in its own operations to avoid imposing a substantial burden on religious exercise. (d) Other authority to impose conditions on funding unaffected. Nothing in this Act shall--

App. 107 (1) authorize a government to regulate or affect, directly or indirectly, the activities or policies of a person other than a government as a condition of receiving funding or other assistance; or (2) restrict any authority that may exist under other law to so regulate or affect, except as provided in this Act. (e) Governmental discretion in alleviating burdens on religious exercise. A government may avoid the preemptive force of any provision of this Act by changing the policy or practice that results in a substantial burden on religious exercise, by retaining the policy or practice and exempting the substantially burdened religious exercise, by providing exemptions from the policy or practice for applications that substantially burden religious exercise, or by any other means that eliminates the substantial burden. (f) Effect on other law. With respect to a claim brought under this Act, proof that a substantial burden on a persons religious exercise affects, or removal of that burden would affect, commerce with foreign nations, among the several States, or with Indian tribes, shall not establish any inference or presumption that Congress intends that any religious exercise is, or is not, subject to any law other than this Act. (g) Broad construction. This Act shall be construed in favor of a broad protection of religious exercise, to the maximum extent permitted by the terms of this Act and the Constitution.

App. 108 (h) No preemption or repeal. Nothing in this Act shall be construed to preempt State law, or repeal Federal law, that is equally as protective of religious exercise as, or more protective of religious exercise than, this Act. (i) Severability. If any provision of this Act or of an amendment made by this Act, or any application of such provision to any person or circumstance, is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provision to any other person or circumstance shall not be affected. Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. 2000cc-4 Establishment Clause unaffected Nothing in this Act shall be construed to affect, interpret, or in any way address that portion of the first amendment to the Constitution prohibiting laws respecting an establishment of religion (referred to in this section as the Establishment Clause). Granting government funding, benefits, or exemptions, to the extent permissible under the Establishment Clause, shall not constitute a violation of this Act. In this section, the term granting, used with respect to government funding, benefits, or exemptions, does not include the denial of government funding, benefits, or exemptions.

App. 109 Religious Land Use and Institutionalized Persons Act of 200042 U.S.C. 2000cc-5 Definitions In this Act: (1) Claimant. The term claimant means a person raising a claim or defense under this Act. (2) Demonstrates. The term demonstrates means meets the burdens of going forward with the evidence and of persuasion. (3) Free Exercise Clause. The term Free Exercise Clause means that portion of the first amendment to the Constitution that proscribes laws prohibiting the free exercise of religion. (4) Government. The term government-(A) means (i) a State, county, municipality, or other governmental entity created under the authority of a State; (ii) any branch, department, agency, instrumentality, or official of an entity listed in clause (i); and (iii) any other person acting under color of State law; and (B) for the purposes of sections 4(b) and 5 [42 USC 2000cc-2(b) and 2000cc-3], includes the United States, a branch, department, agency, instrumentality, or official of the

App. 110 United States, and any other person acting under color of Federal law. (5) Land use regulation. The term land use regulation means a zoning or landmarking law, or the application of such a law, that limits or restricts a claimants use or development of land (including a structure affixed to land), if the claimant has an ownership, leasehold, easement, servitude, or other property interest in the regulated land or a contract or option to acquire such an interest. (6) Program or activity. The term program or activity means all of the operations of any entity as described in paragraph (1) or (2) of section 606 of the Civil Rights Act of 1964 (42 U.S.C. 2000d-4a). (7) Religious exercise. (A) In general. The term religious exercise includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief. (B) Rule. The use, building, or conversion of real property for the purpose of religious exercise shall be considered to be religious exercise of the person or entity that uses or intends to use the property for that purpose. Fed. R. Civ. P. 56(c) and (e)(2): (c). Serving the Motion; Proceedings. ....The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to

App. 111 interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. .... (e)(2). Affidavits; Further Testimony. ....Opposing Partys Obligation to Respond. When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response mustby affidavits or as otherwise provided in this ruleset out specific facts showing a genuine issue for trial. If the opposing party does not so respond, summary judgment should, if appropriate, be entered against that party. Wis. Stat. 59.69. Planning and zoning authority. (1) PURPOSE. It is the purpose of this section to promote the public health, safety, convenience and general welfare; to encourage planned and orderly land use development; to protect property values and the property tax base; to permit the careful planning and efficient maintenance of highway systems; to ensure adequate highway, utility, health, educational and recreational facilities; to recognize the needs of agriculture, forestry, industry and business in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind

App. 112 energy systems; to encourage the protection of groundwater resources; to preserve wetlands; to conserve soil, water and forest resources; to protect the beauty and amenities of landscape and man-made developments; to provide healthy surroundings for family life; and to promote the efficient and economical use of public funds. To accomplish this purpose the board may plan for the physical development and zoning of territory within the county as set forth in this section and shall incorporate therein the master plan adopted under s. 62.23 (2) or (3) and the official map of any city or village in the county adopted under s. 62.23 (6). (2)-(3) omitted. (4) EXTENT OF POWER. For the purpose of promoting the public health, safety and general welfare the board may by ordinance effective within the areas within such county outside the limits of incorporated villages and cities establish districts of such number, shape and area, and adopt such regulations for each such district as the board considers best suited to carry out the purposes of this section. The board may establish mixed-use districts that contain any combination of uses, such as industrial, commercial, public, or residential uses, in a compact urban form. *** (5) FORMATION PROCEDURE. OF ZONING ORDINANCE;

(a) When the county zoning agency has completed a draft of a proposed zoning ordinance, it shall hold a public hearing thereon, following publication in the county of a class 2 notice, under ch. 985. If the

App. 113 proposed ordinance has the effect of changing the allowable use of any property, the notice shall include either a map showing the property affected by the ordinance or a description of the property affected by the ordinance and a statement that a map may be obtained from the zoning agency. After such hearing the agency may make such revisions in the draft as it considers necessary, or it may submit the draft without revision to the board with recommendations for adoption. Proof of publication of the notice of the public hearing held by such agency shall be attached to its report to the board. (b) When the draft of the ordinance, recommended for enactment by the zoning agency, is received by the board, it may enact the ordinance as submitted, or reject it, or return it to the agency with such recommendations as the board may see fit to make. In the event of such return subsequent procedure by the agency shall be as if the agency were acting under the original directions. When enacted, duplicate copies of the ordinance shall be submitted by the clerk by registered mail to each town clerk for consideration by the town board. (c) A county ordinance enacted under this section shall not be effective in any town until it has been approved by the town board. If the town board approves an ordinance enacted by the county board, under this section, a certified copy of the approving resolution attached to one of the copies of such ordinance submitted to the town board shall promptly be filed with the county clerk by the town clerk. The ordinance shall become effective in the town as of the date of the filing, which filing shall

App. 114 be recorded by the county clerk in the clerks office, reported to the town board and the county board, and printed in the proceedings of the county board. The ordinance shall supersede any prior town ordinance in conflict therewith or which is concerned with zoning, except as provided by s. 60.62. (d) The board may by a single ordinance repeal an existing county zoning ordinance and reenact a comprehensive revision thereto in accordance with this section. Comprehensive revision, in this paragraph, means a complete rewriting of an existing zoning ordinance which changes numerous zoning provisions and alters or adds zoning districts. The comprehensive revision may provide that the existing ordinance shall remain in effect in a town for a period of up to one year or until the comprehensive revision is approved by the town board, whichever period is shorter. If the town board fails to approve the comprehensive revision within a year neither the existing ordinance nor the comprehensive revision shall be in force in that town. Any repeal and reenactment prior to November 12, 1965, which would be valid under this paragraph is hereby validated. (e) The board may amend an ordinance or change the district boundaries. The procedure for such amendments or changes is as follows: 1. A petition for amendment of a county zoning ordinance may be made by a property owner in the area to be affected by the amendment, by the town board of any town in which the ordinance is in effect; by any member of the board or by the

App. 115 agency designated by the board to consider county zoning matters as provided in sub. (2) (a). The petition shall be filed with the clerk who shall immediately refer it to the county zoning agency for its consideration, report and recommendations. Immediate notice of the petition shall be sent to the county supervisor of any affected district. A report of all petitions referred under this paragraph shall be made to the county board at its next succeeding meeting. 2. Upon receipt of the petition by the agency it shall call a public hearing on the petition. Notice of the time and place of the hearing shall be given by publication in the county of a class 2 notice, under ch. 985. If an amendment to an ordinance, as described in the petition, has the effect of changing the allowable use of any property, the notice shall include either a map showing the property affected by the amendment or a description of the property affected by the amendment and a statement that a map may be obtained from the zoning agency. A copy of the notice shall be mailed by registered mail to the town clerk of each town affected by the proposed amendment at least 10 days prior to the date of such hearing. If the petition is for any change in an airport affected area, as defined in s. 62.23 (6) (am) 1. b., the agency shall mail a copy of the notice to the owner or operator of the airport bordered by the airport affected area. 3. Except as provided under subd. 3m., if a town affected by the proposed amendment

App. 116 disapproves of the proposed amendment, the town board of the town may file a certified copy of the resolution adopted by the board disapproving of the petition with the agency before, at or within 10 days after the public hearing. If the town board of the town affected in the case of an ordinance relating to the location of boundaries of districts files such a resolution, or the town boards of a majority of the towns affected in the case of all other amendatory ordinances file such resolutions, the agency may not recommend approval of the petition without change, but may only recommend approval with change or recommend disapproval. 3m. A town may extend its time for disapproving any proposed amendment under subd. 3. by 20 days if the town board adopts a resolution providing for the extension and files a certified copy of the resolution with the clerk of the county in which the town is located. The 20-day extension shall remain in effect until the town board adopts a resolution rescinding the 20-day extension and files a certified copy of the resolution with the clerk of the county in which the town is located. 4. As soon as possible after the public hearing, the agency shall act, subject to subd. 3., on the petition either approving, modifying and approving, or disapproving it. If its action is favorable to granting the requested change or any modification thereof, it shall cause an ordinance to be drafted effectuating its

App. 117 determination and shall submit the proposed ordinance directly to the board with its recommendations. If the agency after its public hearing recommends denial of the petition it shall report its recommendation directly to the board with its reasons for the action. Proof of publication of the notice of the public hearing held by the agency and proof of the giving of notice to the town clerk of the hearing shall be attached to either report. Notification of town board resolutions filed under subd. 3. shall be attached to either such report. 5. Upon receipt of the agency report the board may enact the ordinance as drafted by the zoning agency or with amendments, or it may deny the petition for amendment, or it may refuse to deny the petition as recommended by the agency in which case it shall rerefer the petition to the agency with directions to draft an ordinance to effectuate the petition and report the ordinance back to the board which may then enact or reject the ordinance. 5g. If a protest against a proposed amendment is filed with the clerk at least 24 hours prior to the date of the meeting of the board at which the report of the zoning agency under subd. 4. is to be considered, duly signed and acknowledged by the owners of 50% or more of the area proposed to be altered, or by abutting owners of over 50% of the total perimeter of the area proposed to be altered included within 300 feet of the parcel or parcels proposed to be rezoned, action on the ordinance may be deferred until the zoning

App. 118 agency has had a reasonable opportunity to ascertain and report to the board as to the authenticity of the ownership statements. Each signer shall state the amount of area or frontage owned by that signer and shall include a description of the lands owned by that signer. If the statements are found to be true, the ordinance may not be enacted except by the affirmative vote of three-fourths of the members of the board present and voting. If the statements are found to be untrue to the extent that the required frontage or area ownership is not present the protest may be disregarded. 5m. If a proposed amendment under this paragraph would make any change in an airport affected area, as defined under s. 62.23 (6) (am) 1. b., and the owner or operator of the airport bordered by the airport affected area files a protest against the proposed amendment with the clerk at least 24 hours prior to the date of the meeting of the board at which the report of the zoning agency under subd. 4. is to be considered, no ordinance which makes such a change may be enacted except by the affirmative vote of two-thirds of the members of the board present and voting. 6. If an amendatory ordinance makes only the change sought in the petition and if the petition was not disapproved prior to, at or within 10 days under subd. 3. or 30 days under subd. 3m., whichever is applicable, after the public hearing by the town board of the town affected in the case of an ordinance relating to the location of

App. 119 district boundaries or by the town boards of a majority of the towns affected in the case of all other amendatory ordinances, it shall become effective on passage. The county clerk shall record in the clerks office the date on which the ordinance becomes effective and notify the town clerk of all towns affected by the ordinance of the effective date and also insert the effective date in the proceedings of the county board. Any other amendatory ordinance when enacted shall within 7 days thereafter be submitted in duplicate by the county clerk by registered mail to the town clerk of each town in which lands affected by the ordinance are located. If after 40 days from the date of the enactment a majority of the towns have not filed certified copies of resolutions disapproving the amendment with the county clerk, or if, within a shorter time a majority of the towns in which the ordinance is in effect have filed certified copies of resolutions approving the amendment with the county clerk, the amendment shall be in effect in all of the towns affected by the ordinance. Any ordinance relating to the location of boundaries of districts shall within 7 days after enactment by the county board be transmitted by the county clerk by registered mail only to the town clerk of the town in which the lands affected by the change are located and shall become effective 40 days after enactment of the ordinance by the county board unless such town board prior to such date files a certified copy of a resolution disapproving of the ordinance with the county clerk. If such town board approves the ordinance, the ordinance shall become effective upon the filing

App. 120 of the resolution of the town board approving the ordinance with the county clerk. The clerk shall record in the clerks office the date on which the ordinance becomes effective and notify the town clerk of all towns affected by such ordinance of such effective date and also make such report to the county board, which report shall be printed in the proceedings of the county board. 7. When any lands previously under the jurisdiction of a county zoning ordinance have been finally removed from such jurisdiction by reason of annexation to an incorporated municipality, and after the regulations imposed by the county zoning ordinance have ceased to be effective as provided in sub. (7), the board may, on the recommendation of its zoning agency, enact amendatory ordinances that remove or delete the annexed lands from the official zoning map or written descriptions without following any of the procedures provided in subds. 1. to 6., and such amendatory ordinances shall become effective upon enactment and publication. A copy of the ordinance shall be forwarded by the clerk to the clerk of each town in which the lands affected were previously located. Nothing in this paragraph shall be construed to nullify or supersede s. 66.1031. (f) The county zoning agency shall maintain a list of persons who submit a written request to receive notice of any proposed ordinance or amendment that affects the allowable use of the property owned by the person. If the county zoning agency

App. 121 completes a draft of a proposed zoning ordinance under par. (a) or if the agency receives a petition under par. (e) 2., the agency shall send a notice, which contains a copy of the proposed ordinance or petition, to each person on the list whose property, the allowable use of which, may be affected by the proposed ordinance or amendment. The notice shall be by mail or in any reasonable form that is agreed to by the person and the agency. The agency may charge each person on the list who receives a notice a fee that does not exceed the approximate cost of providing the notice to the person. An ordinance or amendment that is subject to this paragraph may take effect even if the agency fails to send the notice that is required by this paragraph. Wis. Stat. 60.10. Powers of town meeting. (1) DIRECT POWERS. The town meeting may: (a) Raise money. Raise money, including levying taxes, to pay for expenses of the town, unless the authority has been delegated to the town board under sub. (2) (a). (b) Town offices and officers. 1. Fix the compensation of elective town offices under s. 60.32, unless the authority has been delegated to the town board under sub. (2) (k). 2. Combine the offices of town clerk and town treasurer under s. 60.305 (1). 2m. In a town with a population of 2,500 or more, provide for the appointment by the town

App. 122 board of the town clerk, town treasurer, or both, or of the combined office of town clerk and town treasurer under s. 60.305 (1), at a level of compensation to be set by the board that may not be reduced during the term to which the person is appointed. 3. Combine the offices of town assessor and town clerk under s. 60.305 (2). 4. Establish or abolish the office of town constable and establish the number of constables. Abolition of the office is effective at the end of the term of the person serving in the office. 5. Designate the office of town clerk, town treasurer or the combined office of clerk and treasurer as part-time under s. 60.305 (1) (b). 6. Designate town board supervisors as full-time officers. (c) Election of town officers. 1. Adopt a plan under s. 5.60 (6) to elect town board supervisors to numbered seats. 2. Provide under s. 8.05 (3) (a) for the nomination of candidates for elective town offices at a nonpartisan primary election. (e) Cemeteries. Authorize the acquisition and conveyance of cemeteries under s. 157.50 (1) and (3).

App. 123 (f) Administrator agreements. Approve agreements to employ an administrator for more than 3 years under s. 60.37 (3) (d). (g) Hourly wage of certain employees. Establish the hourly wage to be paid under s. 60.37 (4) to a town employee who is also an elected town officer, unless the authority has been delegated to the town board under sub. (2) (L). (2) DIRECTIVES OR GRANTS OF AUTHORITY TO TOWN BOARD. Except as provided under par. (c), directives or grants of authority to the town board under this subsection may be general and continuing or may be limited as to purpose, effect or duration. A resolution adopted under this subsection shall specify whether the directive or grant is general and continuing or whether it is limited as to purpose, effect or duration. A resolution that is continuing remains in effect until rescinded at a subsequent town meeting by a number of electors equal to or greater than the number of electors who voted for the original resolution. This subsection does not limit any authority otherwise conferred on the town board by law. By resolution, the town meeting may: (a) Raise money. Authorize the town board to raise money, including levying taxes, to pay for expenses of the town. (b) Membership of town board in populous towns. In a town with a population of 2,500 or more, direct the town board to increase the membership of the board under s. 60.21 (2).

App. 124 (c) Exercise of village powers. Authorize the town board to exercise powers of a village board under s. 60.22 (3). A resolution adopted under this paragraph is general and continuing. (d) General obligation bonds. Authorize the town board to issue general obligation bonds in the manner and for the purposes provided by law. (e) Purchase of land. Authorize the town board to purchase any land within the town for present or anticipated town purposes. (f) Town buildings. Authorize the town board to purchase, lease or construct buildings for the use of the town, to combine for this purpose the towns funds with those of a society or corporation doing business or located in the town and to accept contributions of money, labor or space for this purpose. (g) Disposal of property. Authorize the town board to dispose of town real property, other than property donated to and required to be held by the town for a special purpose. (h) Exercise of certain zoning authority. In a town located in a county which has enacted a zoning ordinance under s. 59.69, authorize, under s. 60.62 (2), the town board to enact town zoning ordinances under s. 61.35. (i) Watershed protection and soil and water conservation. Authorize the town board to engage in watershed protection, soil conservation or water conservation activities beneficial to the town.

App. 125 (j) Appointed assessors. Authorize the town board to select assessors by appointment under s. 60.307 (2). (k) Compensation of elective town offices. Authorize the town board to fix the compensation of elective town offices under s. 60.32 (1) (b). (l) Hourly wage of certain employees. Authorize the town board to establish the hourly wage to be paid under s. 60.37 (4) to a town employee who is also an elected town officer, other than a town board supervisor. (3) AUTHORIZATION TO TOWN BOARD TO APPROPRIATE MONEY. The town meeting may authorize the town board to appropriate money in the next annual budget for: (a) Conservation of natural resources. The conservation of natural resources by the town or by a bona fide nonprofit organization under s. 60.23 (6). (b) Civic functions. Civic and other functions under s. 60.23 (3). (c) Insects, weeds and animal diseases. The control of insect pests, weeds or plant or animal diseases within the town. (d) Rural numbering systems. Posting signs and otherwise cooperating with the county in the establishment of a rural numbering system under s. 59.54 (4) and (4m). (e) Cemetery improvements. The improvement of the town cemetery under s. 157.50 (5).

App. 126 Wis. Stat. 60.22. General powers and duties. The town board: (1) CHARGE OF TOWN AFFAIRS. Has charge of all affairs of the town not committed by law to another body or officer or to a town employee. (2) CHARGE OF ACTIONS. Has charge of any action or legal proceeding to which the town is a party. (3) VILLAGE POWERS. If authorized under s. 60.10 (2) (c), may exercise powers relating to villages and conferred on village boards under ch. 61, except those powers which conflict with statutes relating to towns and town boards. (4) JURISDICTION OF CONSTABLE. [omitted] (5) PURSUE CERTAIN CLAIMS OF TOWN. [omitted] Wis. Stat. 60.62. Zoning authority if exercising village powers. (1) Except as provided in s. 60.23 (33) and subject to subs. (2), (3) and (4), if a town board has been granted authority to exercise village powers under s. 60.10 (2) (c), the board may adopt zoning ordinances under s. 61.35. (2) If the county in which the town is located has enacted a zoning ordinance under s. 59.69, the exercise of the authority under sub. (1) is subject to approval by the town meeting or by a referendum vote of the electors of the town held at the time of any regular or

App. 127 special election. The question for the referendum vote shall be filed as provided in s. 8.37. (3) In counties having a county zoning ordinance, no zoning ordinance or amendment of a zoning ordinance may be adopted under this section unless approved by the county board. (4) (a) Notwithstanding ss. 61.35 and 62.23 (1) (a), a town with a population of less than 2,500 that acts under this section may create a Town Plan Commission under s. 62.23 (1) (a) that has 5 members, all of whom shall be appointed by the town board chairperson, subject to confirmation by the town board. The town chairperson shall also select the presiding officer. The town board chairperson may appoint town board members to the commission and may appoint other town elected or appointed officials to the commission, except that the commission shall always have at least one citizen member who is not a town official. Appointees to the town plan commission may be removed only by a majority vote of the town board. All other provisions of ss. 61.35 and 62.23 shall apply to a town plan commission that has 5 members. (b) If a town plan commission consists of 7 members and the town board enacts an ordinance or adopts a resolution reducing the size of the commission to 5 members, the commission shall continue to operate with 6 or 7 members until the expiration of the terms of the 2 citizen members, who were appointed under s. 62.23 (1) (a), whose terms expire

App. 128 soonest after the effective date of the ordinance or resolution that reduces the size of the commission. (c) If a town plan commission consists of 5 members and the town board enacts an ordinance or adopts a resolution increasing the size of the commission to 7 members, the town board chairperson shall appoint the 2 new members under s. 62.23 (1) (a). (d) Notwithstanding ss. 61.35 and 62.23 (1) (a), if a town with a population of at least 2,500 acts under this section and creates a Town Plan Commission under s. 62.23 (1) (a), all members of the commission shall be appointed by the town board chairperson, subject to confirmation by the town board. The town chairperson shall also select the presiding officer. The town board chairperson may appoint town board members to the commission and may appoint other town elected or appointed officials to the commission, except that the commission shall always have at least 3 citizen members who are not town officials. Appointments shall be made by the town board chairperson during the month of April for terms that expire in April or at any other time if a vacancy occurs during the middle of a term except that the appointees to the town plan commission may be removed before the expiration of the appointees term by a majority vote of the town board. All other provisions of ss. 61.35 and 62.23 shall apply to a town plan commission to which this paragraph applies. Wis. Stat. 61.35. Village planning. Section 62.23 applies to villages, and the powers and duties conferred and imposed by s. 62.23 upon mayors,

App. 129 councils and specified city officials are hereby conferred upon presidents, village boards, and village officials performing duties similar to the duties of such specified city officials, respectively. Any ordinance or resolution passed prior to May 30, 1925, by any village board under s. 61.35, 1923 stats., shall remain in effect until repealed or amended by such village board. Wis. Stat. 62.23. City planning. (1) COMMISSION. (a) The council of any city may by ordinance create a City Plan Commission, to consist of 7 members. The commission shall also include, as a nonvoting member, a representative from a military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in the city, if the bases or installations commanding officer appoints such a representative. All members of the commission, other than the representative appointed by the commanding officer of a military base or installation, shall be appointed by the mayor, who shall also choose the presiding officer. The mayor may appoint himself or herself to the commission and may appoint other city elected or appointed officials, except that the commission shall always have at least 3 citizen members who are not city officials. Citizen members shall be persons of recognized experience and qualifications. The council may by ordinance provide that the membership of the commission shall be as provided thereunder. (d) [omitted re: term, appointment and vacancy re: members of the commission]

App. 130 (e) The city plan commission shall have power and authority to employ experts and a staff, and to pay for their services and such other expenses as may be necessary and proper, not exceeding, in all, the appropriation that may be made for such commission by the legislative body, or placed at its disposal through gift, and subject to any ordinance or resolution enacted by the governing body. (f) Any city may by ordinance increase the number of members of the city plan commission so as to provide that the building commissioner or building inspector shall serve as a member thereof. (2) FUNCTIONS. It shall be the function and duty of the commission to make and adopt a master plan for the physical development of the city, including any areas outside of its boundaries that in the commissions judgment bear relation to the development of the city provided, however, that in any county where a regional planning department has been established, areas outside the boundaries of a city may not be included in the master plan without the consent of the county board of supervisors. The master plan, with the accompanying maps, plats, charts, and descriptive and explanatory matter, shall show the commissions recommendations for such physical development, and shall, as described in sub. (3) (b), contain at least the elements described in s. 66.1001 (2). The commission may from time to time amend, extend, or add to the master plan or carry any part or subject matter into greater detail. The commission may adopt rules for the transaction of business and shall keep a record of its resolutions,

App. 131 transactions, findings, and determinations, which record shall be a public record. (3) THE MASTER PLAN. (a) The master plan shall be made with the general purpose of guiding and accomplishing a coordinated, adjusted and harmonious development of the municipality which will, in accordance with existing and future needs, best promote public health, safety, morals, order, convenience, prosperity or the general welfare, as well as efficiency and economy in the process of development. (b) The commission may adopt the master plan as a whole by a single resolution, or, as the work of making the whole master plan progresses, may from time to time by resolution adopt a part or parts of a master plan. Beginning on January 1, 2010, or, if the city is exempt under s. 66.1001 (3m), the date under s. 66.1001 (3m) (b), if the city engages in any program or action described in s. 66.1001 (3), the master plan shall contain at least all of the elements specified in s. 66.1001 (2). The adoption of the plan or any part, amendment, or addition, shall be by resolution carried by the affirmative votes of not less than a majority of all the members of the city plan commission. The resolution shall refer expressly to the elements under s. 66.1001 and other matters intended by the commission to form the whole or any part of the plan, and the action taken shall be recorded on the adopted plan or part of the plan by the identifying signature of the secretary of the commission, and a copy of the plan or part of the plan shall be certified to the common council, and also to the commanding

App. 132 officer, or the officers designee, of any military base or installation, with at least 200 assigned military personnel or that contains at least 2,000 acres, that is located in or near the city. The purpose and effect of the adoption and certifying of the master plan or part of the plan shall be solely to aid the city plan commission and the council in the performance of their duties. (4) MISCELLANEOUS COMMISSION. POWERS OF THE

The commission may make reports and recommendations relating to the plan and development of the city to public officials and agencies, public utility companies, civic, educational, professional and other organizations, and citizens. It may recommend to the mayor or council, programs for public improvements and the financing thereof. All public officials shall, upon request, furnish to the commission, within a reasonable time, such available information as it may require for its work. The commission, its members and employees, in the performance of its functions, may enter upon any land, make examinations and surveys, and place and maintain necessary monuments and marks thereon. In general, the commission shall have such powers as may be necessary to enable it to perform its functions and promote municipal planning. (5) MATTERS COMMISSION. REFERRED TO CITY PLAN

The council, or other public body or officer of the city having final authority thereon, shall refer to the city plan commission, for its consideration and report before final action is taken by the council, public body or

App. 133 officer, the following matters: The location and architectural design of any public building; the location of any statue or other memorial; the location, acceptance, extension, alteration, vacation, abandonment, change of use, sale, acquisition of land for or lease of land for any street, alley or other public way, park, playground, airport, area for parking vehicles, or other memorial or public grounds; the location, extension, abandonment or authorization for any public utility whether publicly or privately owned; all plats of lands in the city or within the territory over which the city is given platting jurisdiction by ch. 236; the location, character and extent or acquisition, leasing or sale of lands for public or semipublic housing, slum clearance, relief of congestion, or vacation camps for children; and the amendment or repeal of any ordinance adopted pursuant to this section. Unless such report is made within 30 days, or such longer period as may be stipulated by the common council, the council or other public body or officer, may take final action without it. (6) OFFICIAL MAP. (a) As used in this subsection, waterways includes rivers, streams, creeks, ditches, drainage channels, watercourses, lakes, bays, ponds, impoundment reservoirs, retention and detention basins, marshes and other surface water areas, regardless of whether the areas are natural or artificial. (am) 1. In this paragraph: a. Airport means ... .

App. 134 b. Airport affected area means ... . 2. [omitted; pertaining to airports] (b) The council of any city may by ordinance or resolution establish an official map of the city or any part thereof showing the streets, highways, historic districts, parkways, parks and playgrounds laid out, adopted and established by law. The city may also include the location of railroad rights-of-way, waterways and public transit facilities on its map. A city may include a waterway on its map only if the waterway is included in a comprehensive surface water drainage plan. The map is conclusive with respect to the location and width of streets, highways, waterways and parkways, and the location and extent of railroad rights-of-way, public transit facilities, parks and playgrounds shown on the map. The official map is declared to be established to conserve and promote the public health, safety, convenience or general welfare. The ordinance or resolution shall require the city clerk at once to record with the register of deeds of the county or counties in which the city is situated a certificate showing that the city has established an official map. An ordinance or resolution establishing any part of an official map enacted prior to June 16, 1965, which would be valid under this paragraph is hereby validated. (c) The city council may amend the official map of the city so as to establish the exterior lines of planned new streets, highways, historic districts, parkways, railroad rights-of-way, public transit facilities, waterways, parks or playgrounds, or to widen, narrow, extend or close existing streets,

App. 135 highways, historic districts, parkways, railroad rights-of-way, public transit facilities, waterways, parks or playgrounds. No such change may become effective until after a public hearing concerning the proposed change before the city council or a committee appointed by the city council from its members, at which parties in interest and citizens shall have an opportunity to be heard. *** (d) The locating, widening or closing, or the approval of the locating, widening or closing of streets, highways, waterways, parkways, railroad rights-of-way, public transit facilities, parks or playgrounds by the city under provisions of law other than this section shall be deemed to amend the official map, and are subject to this section, except that changes or additions made by a subdivision plat approved by the city under ch. 236 do not require the public hearing specified in par. (c) if the changes or additions do not affect any land outside the platted area. (e) No permit may be issued to construct or enlarge any building within the limits of any street, highway, waterway, railroad right-of-way, public transit facility or parkway, shown or laid out on the map except as provided in this section. The street, highway, waterway, railroad right-of-way, public transit facility or parkway system shown on the official map may be shown on the official map as extending beyond the boundaries of a city or village a distance equal to that within which the approval of land subdivision plats by the city council or village board is required as provided by s. 236.10 (1) (b) 2. Any person desiring to construct or enlarge a

App. 136 building within the limits of a street, highway, railroad right-of-way, public transit facility or parkway so shown as extended may apply to the authorized official of the city or village for a building permit. Any person desiring to construct or enlarge a building within the limits of a street, highway, waterway, railroad right-of-way, public transit facility or parkway shown on the official map within the incorporated limits of the municipality shall apply to the authorized official of the city or village for a building permit. *** (f) In any city in which there is no such board of appeals, the city council shall have the same powers and shall be subject to the same restrictions. For this purpose such council is authorized to act as a discretionary administrative or quasi-judicial body. When so acting it shall not sit as a legislative body but in a separate meeting and with separate minutes kept. (g) Before taking any action authorized in this subsection, the board of appeals or city council shall hold a hearing at which parties in interest and others shall have an opportunity to be heard. *** (h) In any city which has established an official map as herein authorized no public sewer or other municipal street utility or improvement shall be constructed in any street, highway or parkway until such street, highway or parkway is duly placed on the official map.*** (i) In those counties where the county maintains and operates parks, parkways, playgrounds, bathing beaches and other recreational facilities

App. 137 within the limits of any city, such city shall not include said facilities in the master plan without the approval of the county board of supervisors. (7) ZONING. (ab) Definition. In this subsection nonconforming use means a use of land, a dwelling, or a building that existed lawfully before the current zoning ordinance was enacted or amended, but that does not conform with the use restrictions in the current ordinance. (am) Grant of power. For the purpose of promoting health, safety, morals or the general welfare of the community, the council may regulate and restrict by ordinance, subject to par. (hm), the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, mining, residence or other purposes if there is no discrimination against temporary structures. This subsection and any ordinance, resolution or regulation enacted or adopted under this section, shall be liberally construed in favor of the city and as minimum requirements adopted for the purposes stated. This subsection may not be deemed a limitation of any power granted elsewhere. (b) Districts. For any and all of said purposes the council may divide the city into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this section; and within such districts it may regulate and restrict

App. 138 the erection, construction, reconstruction, alteration or use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings and for the use of land throughout each district, but the regulations in one district may differ from those in other districts. *** (c) Purposes in view. Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air, including access to sunlight for solar collectors and to wind for wind energy systems; to encourage the protection of groundwater resources; to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements; and to preserve burial sites, as defined in s. 157.70 (1) (b). Such regulations shall be made with reasonable consideration, among other things, of the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such city. (d) Method of procedure. [omitted] (da) Interim zoning. The common council of any city which has not adopted a zoning ordinance may, without referring the matter to the plan commission, enact an interim zoning ordinance to preserve existing uses while the comprehensive zoning plan is being prepared. Such ordinance may

App. 139 be enacted as is an ordinary ordinance but shall be effective for no longer than 2 years after its enactment. (e) Board of appeals. [omitted] (ea) Filing fees. [omitted] (em) Historic preservation. [omitted] (f) Enforcement and remedies. [omitted] (g) Conflict with other laws. Wherever the regulations made under authority of this section require a greater width or size of yards, courts or other open spaces, or require a lower height of building or less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required in any other statute or local ordinance or regulation, the provisions of the regulations made under authority of this section shall govern. Wherever the provisions of any other statute or local ordinance or regulation require a greater width or size of yards, courts or other open spaces, or require a lower height of building or a less number of stories, or require a greater percentage of lot to be left unoccupied, or impose other higher standards than are required by the regulations made under authority of this section, the provisions of such statute or local ordinance or regulation shall govern. (gm) Permits. Neither the city council, nor the city plan commission, nor the city plan committee of the city council, nor the board of appeals may condition or withhold approval of a permit under this section

App. 140 based upon the property owner entering into a contract, or discontinuing, modifying, extending, or renewing any contract, with a 3rd party under which the 3rd party is engaging in a lawful use of the property. (h) Nonconforming uses. [omitted] (hb) Repair and maintenance of nonconforming structures. [omitted] certain

(hc) Restoration of certain nonconforming structures. [omitted] (he) Antenna facilities. [omitted] (hf) Amateur radio antennas. [omitted]bly accommodates amateur radio communications. (hg) Amortization prohibited. [omitted] (hi) Payday lenders. [omitted] (hm) Migrant labor camps. [omitted] (i) Community and other living arrangements. [omitted] (7a) EXTRATERRITORIAL ZONING. [omitted] (8) OTHER MEASURES OF ENFORCEMENT AND REMEDIES; PENALTY [omitted] (9) BUILDING INSPECTION. [omitted] (9a) MAY EXERCISE POWERS OF BOARD OF PUBLIC LAND COMMISSIONERS. [omitted] (10) WIDENING STREETS. [omitted] (11) BUILDING LINES. [omitted]

App. 141 (13) FUNDS. [omitted] (14) ASSESSMENTS. [omitted] (15) EXCESS CONDEMNATION. [omitted] (16) BENEFITS [omitted] FROM PUBLIC BUILDINGS.

(17) ACQUIRING LAND. [omitted] (18) LAKES AND RIVERS. The city may improve lakes and rivers within the city and establish the shorelines thereof so far as existing shores are marsh, and where a navigable stream traverses or runs along the border of a city, such city may make improvements therein throughout the county in which such city shall be located in aid of navigation, and for the protection and welfare of public health and wildlife. Wis. Stat. 66.1001. Comprehensive planning. (1) DEFINITIONS.

In this section: (a) Comprehensive plan means a guide to the physical, social, and economic development of a local governmental unit that is one of the following: 1. For a county, a development plan that is prepared or amended under s. 59.69 (2) or (3). 2. For a city, village, or town, a master plan that is adopted or amended under s. 62.23 (2) or (3).

App. 142 3. For a regional planning commission, a master plan that is adopted or amended under s. 66.0309 (8), (9) or (10). (am) Consistent with means furthers or does not contradict the objectives, goals, and policies contained in the comprehensive plan. (b) Local governmental unit means a city, village, town, county or regional planning commission that may adopt, prepare or amend a comprehensive plan. (c) Political subdivision means a city, village, town, or county that may adopt, prepare, or amend a comprehensive plan. (2) CONTENTS OF A COMPREHENSIVE PLAN.

A comprehensive plan shall contain all of the following elements: (a) (b) (c) Issues and opportunities element. [omitted] Housing element. [omitted] Transportation element. [omitted]

(d) Utilities and community facilities element. [omitted] (e) Agricultural, natural and cultural resources element. [omitted] (f) Economic development element. [omitted] cooperation element.

(g) Intergovernmental [omitted]

(h) Land-use element. A compilation of objectives, policies, goals, maps and programs to guide the future

App. 143 development and redevelopment of public and private property. The element shall contain a listing of the amount, type, intensity and net density of existing uses of land in the local governmental unit, such as agricultural, residential, commercial, industrial and other public and private uses. The element shall analyze trends in the supply, demand and price of land, opportunities for redevelopment and existing and potential land-use conflicts. The element shall contain projections, based on the background information specified in par. (a), for 20 years, in 5-year increments, of future residential, agricultural, commercial and industrial land uses including the assumptions of net densities or other spatial assumptions upon which the projections are based. The element shall also include a series of maps that shows current land uses and future land uses that indicate productive agricultural soils, natural limitations for building site development, floodplains, wetlands and other environmentally sensitive lands, the boundaries of areas to which services of public utilities and community facilities, as those terms are used in par. (d), will be provided in the future, consistent with the timetable described in par. (d), and the general location of future land uses by net density or other classifications. (i) Implementation element. [omitted] OF A

(2m) EFFECT OF ENACTMENT COMPREHENSIVE PLAN. [omitted]

(3) ORDINANCES THAT MUST BE CONSISTENT WITH COMPREHENSIVE PLANS. [omitted] (3m) DELAY OF CONSISTENCY REQUIREMENT. [omitted]

App. 144 (4) PROCEDURES FOR ADOPTING COMPREHENSIVE PLANS. [omitted] (5) APPLICABILITY OF A REGIONAL PLANNING COMMISSION'S PLAN. [omitted] (6) COMPREHENSIVE EFFECT. [omitted] PLAN MAY TAKE

App. 145

APPENDIX H ONEIDA COUNTY ZONING AND SHORELAND PROTECTION ORDINANCE CHAPTER 9 ARTICLE 1 - GENERAL PROVISIONS __________________________________________________ 9.10 9.11 9.12 9.13 9.14 Statutory Authorization Purpose - Underlying Ordinance Applicability Compliance Citation of Wisconsin Statutes and Administrative Code 9.15 Types of Permits - Generally 9.16 General Provisions 9.17 Unsafe Structures 9.18 Prohibition Against Use of Vehicles for Human Habitation 9.19 Relaxation of Standards for Persons with Disabilities __________________________________________________ 9.10 STATUTORY AUTHORIZATION This comprehensive revision to the Oneida County Zoning and Shoreland Protection Ordinance is adopted pursuant to the authorization contained in the following sections of the Wisconsin Statutes: 59.03, 59.69, 59.692, 59.694, 281.31, 293.33, 144.839, 236.45, 30.12(3)(c), and 30.13(2).

App. 146 9.11 PURPOSE- UNDERLYING ORDINANCE It is the purpose of this ordinance to promote the public health, safety, convenience and general welfare; to encourage planned and orderly land use development; to protect property values and the property tax base; to permit the careful planning and efficient maintenance of highway systems; to insure adequate highway, utility, health, educational and recreational facilities; to recognize the needs of agriculture forestry, industry and business in future growth; to encourage uses of land and other natural resources which are in accordance with their character and adaptability; to preserve wetlands, to conserve soil, water and forest resources; to protect the beauty and amenities of landscape and man-made developments; and to protect healthy .surroundings for family life. It is further the goal of this ordinance to promote the following specific purposes: A. Prevent and control water pollution through: 1. Requiring setbacks between septic tanks and soil absorption systems from lakes and other watercourses. 2. Regulating the use of septic tanks and soil absorption systems to protect the public health, safety and general welfare, and 3. Requiring alternate methods of sewage disposal where land conditions make soil absorption methods unsuitable.

App. 147 B Further the maintenance of safe and healthful conditions through: 1. Regulating the location and installation of septic tanks. 2. Limiting structures to those areas where soil and geologic conditions will assure optimal operation 3. Regulating the location of wells. C. Protect spawning grounds, fish and aquatic life through: 1. Preserving wetlands and other fish and aquatic habitat. 2. Regulating pollution sources. 3. Controlling shoreline alterations, dredging and lagooning. D. Control building sites, placement structures and land uses through: of

1. Separating conflicting land uses. 2. Prohibiting certain uses detrimental to the shoreland area. 3. Setting minimum lot sizes and widths. 4. Regulating side yards and building setbacks from roadways and waterways. 5. Requiring the platting of subdivisions. 6. Establishing minimum lot sizes. E. Preserve shore cover and natural beauty through: 1. Restricting the shoreland cover. removal of natural

App. 148 2. Preventing shoreline encroachment by structures. 3. Controlling shoreland excavation and other earth moving activities. 4. Regulating the use and placement of boathouses and other structures. 9.12 APPLICABILITY A. State Agencies and Municipalities Regulated Unless specifically exempted by law, all cities, villages, towns and counties are required to comply with this ordinance and obtain all necessary permits. State agencies are required to comply when sec. 13.48(13), Wis. Stats. applies. The construction, reconstruction, maintenance and repair of state highways and bridges by the Wisconsin Department of Transportation, are exempt when sec. 30.12(4)(a), Wis. Stats., applies. B. Jurisdiction The general zoning provisions of this ordinance, consisting of Articles 1, 2, 3, 4, 5, 6, 7, 8 and 10, shall apply in all town territory, subject to town approval as provided in sec. 59.69(5), Wis. Stats. The shoreland protection provisions of this ordinance contained in Article 9, including any provisions incorporated therein, shall apply and control throughout the County in all shorelands as provided under sec. 59.692, Wis. Stats.

App. 149 ONEIDA COUNTY ZONING AND SHORELAND PROTECTION ORDINANCE CHAPTER 9 ARTICLE 2 - ZONING DISTRICTS __________________________________________________ 9.20 9.21 9.22 9.23 9.24 Zoning Districts Forestry (Districts 1-A, 1-B, and 1-C) Single Family Residential (District 2) Multiple Family Residential (District 3) Residential/Farming (District 4) and Residential /Retail (District 14) 9.25 Recreational (District 5) 9.26 Business B-1 and B-2 (Districts 6 and 7) 9.27 Manufacturing and Industrial (District 8) 9.28 General Use (District 1 0) 9.29 Rural Residential (District 15) __________________________________________________ 9.20 ZONING DISTRICTS A. Districts Created The following zoning districts are created: District 1-A - Forestry District 1-B - Forestry District 1-C - Forestry District 2 - Single Family Residential District 3 - Multiple Family Residential District 4 - Residential and Farming District 5 - Recreational District 6 - Business (B-1) District 7 - Business (B-2) District 8 - Manufacturing and Industrial District 10 - General Use

App. 150 District 11 - Shoreland-Wetland District* District 14 - Residential and Retail District 15 - Rural Residential *Note that the specific provisions applicable to the Shoreland-Wetland District are contained in section 9.91 of this ordinance. B. District Boundaries The boundaries of each of the zoning districts shall follow (1) the line or lines extended indicated on the United States General Land Office survey maps, or (2) along meandered streams or lakes, or (3) along railroad right-ofways, highways, boundaries or recorded plats or along any recognizable or clearly definable line. The boundaries of the zoning districts are as shown on the current Oneida County Official Zoning Map, as designated by the Zoning Administrator, and as subsequently amended: 1 = 400 scale wetland boundary maps for the Town of Lynne, dated June 1, 1993; the Wisconsin Wetland Inventory Maps for all towns in Oneida County other than the Town of Lynne, stamped Final on December 15, 1983; and revised Wisconsin Wetland Inventory Maps for the Town of Lynne, stamped Final on June 15, 1993, which are hereby adopted and made a part of this ordinance. If a discrepancy exists between the wetland boundaries shown on the 1 = 400, scale wetland boundary maps for the Town of Lynne and the revised Wisconsin Wetland Inventory Maps for the Town of Lynne, the wetland boundaries shown on the revised Wisconsin Wetland Inventory Maps shall be

App. 151 used to delineate the boundaries of District 11, the Shore land-Wetland District. Detailed legal descriptions of the boundaries of the zoning districts are contained in the Master Zoning District Document maintained by the Department. In the event of a conflict between the boundaries of the Zoning Districts contained in the Master Zoning District Document and the Oneida County Zoning Map, the boundaries contained in the Master Zoning District Document shall govern and prevail. C. Condominiums - Generally The provisions of this ordinance apply to condominiums. D. Types of Uses - Generally Three types of principal uses are allowed in each zoning district - permitted uses, administrative review uses, and conditional uses. The purpose of the three types of uses is to provide more flexibility and to streamline the zoning process. 1. Permitted uses Only the permitted use specified for a zoning district, services essential to the permitted use, and its accessory uses shall be permitted in that district as a matter of right. Generally, a zoning permit must be issued by the Zoning Administrator before a permitted use may occur. (See sections 9.31 to 9.33.) In some instances, the Zoning Administrator may add specific conditions to the issuance of a zoning permit. (See sections 9.35 and 9.36.)

App. 152 2. Administrative review uses Each zoning district has uses that are identified as administrative review uses. The purpose of this delineation is to allow expedited action on those uses that might otherwise be designated as conditional uses requiring full Committee review and action. Administrative review uses are those uses and their accessory uses that, while compatible with the permitted uses for the district, generally require that specific conditions be imposed on the use to fulfill the purpose of the zoning district and this ordinance. Pursuant to section 9.36, an administrative review permit containing specific conditions must be issued by the Zoning Administrator before such a use may occur. 3. Conditional uses Conditional uses and their accessory uses are those uses which, because of their unique characteristics, cannot properly be allowed without consideration of the impact of those uses. Such uses may be allowed subject to the specific limitation, review, and approval provisions for conditional uses provided in this ordinance.

App. 153 E. Accessory Uses and Structures (#83-2003, #352004, & #07 -2005) Accessory uses and structures shall not be permitted in the Single-Family Residential District (District 2), the Multiple-Family Residential District (District 3), the Residential and Retail District (District 14), and the Rural Residential District (District 15) until the principal structure is constructed or under construction. However, an accessory structure may be constructed prior to construction of a residence if: (1) (2) (3) (4) The accessory structure has no plumbing. The accessory structure shall be used exclusively for personal storage only, not for rental or lease of space. Human occupancy is prohibited. The maximum size of the structure is 1008 square feet.

In those towns that have village powers and have passed a moratorium in accordance with State Statute, County zoning permits shall not be issued for accessory structures on lots on which there is no principal structure or zoning permit for the same for a period of 180 days beginning immediately upon enactment by the County Board and publication until regulatory controls are adopted by the County or applicable Town, whichever is sooner.

App. 154 F. Unclassified and Unspecified Uses Unclassified or unspecified uses are presumed to be prohibited unless authorized by the Committee after review and recommendation of the Zoning Administrator, provided that such uses are compatible with the permitted uses, administrative review uses, or conditional uses allowed in that district. 9.21 FORESTRY DISTRICTS 1-A, 1-B, and 1-C (Amended #14-2001,19-2001, 07-2004, 14-2008) * * * SINGLE FAMILY RESIDENTIAL (DISTRICT 2) (#08-2000, 19-2001, 83-2003 & 11-2004, 142008) A. Purpose The purpose of the Single Family Residential District is to provide an area of quiet seclusion for families. This is the Countys most restrictive residential zoning classification. Motor vehicle traffic should be infrequent and people few. B. Permitted Uses 1. Single family dwellings, including longterm single-family rental and lease arrangements requiring a 30 consecutive day minimum length of stay. 2. Community and other living arrangements as allowed by sec. 59.69, Wis. Stats., that are properly licensed by the appropriate state agency and that have the capacity for eight or fewer persons.

9.22

App. 155 3. 4. 5. 6. Silviculture Gardens and greenhouses for home use Historical markers Growing and harvesting of any wild crop such as wild rice, ferns, mosses, berries, mushrooms, tree fruits and seeds, and marsh hay. 7. An accessory structure may be constructed on a vacant unimproved lot but only in conformity with Section 9.20(E). C. Administrative Review Uses 1. Cemeteries 2. Day care centers if a home occupancy, and only in accordance with the provisions of section 9.43 regarding home occupations 3. Telephone and public utility lines and transmission facilities. Communication structures regulated pursuant to section 9.54 are prohibited in this district, except for government owned or contracted operations 4. Customary home occupations, provided the space requirements do not exceed that which is customary for a family dwelling and accessory buildings and only in accordance with the provisions of section 9.43 regarding home occupations 5. Professional and service offices such as: doctor, dentist, lawyer, accountant, insurance, artist and musician when situated in a dwelling and only in accordance with the provisions of section 9.43 regarding home occupations

App. 156 6. Bed and breakfast establishments with 2 or fewer guest rooms D. Conditional Uses 1. Churches, schools, libraries, community buildings and museums 2. Community living arrangements with 9 or more residents. The County may review the CUP after issuance, pursuant to sec. 59.69, Wis. Stats. 3. Governmental uses 4. Bed and breakfast establishments with 3 or more guest rooms 5. Public parks and playgrounds 6. Pre-existing, licensed resorts, hotels, motels and tourist rooming houses, individual unit replacements or expansions consistent with the number and/or square footage permitted under Appendix A E. Prohibited Uses Any expansions in size, capacity or hours of operation are strictly prohibited for existing, camps, campgrounds, marinas, and business establishments other than D(6) above, located in the Single Family Residential District that were established and operating prior to December 27, 2004. F. Minimum Lot Sizes The minimum lot size requirements for the Single Family Residential District are contained in Appendix A, which is incorporated herein by reference. For any lot or tract of land that does not meet the minimum

App. 157 size requirements for this district as set forth in Appendix A, see Section 9.75 of this ordinance. 9.23 MULTIPLE FAMILY RESIDENTIAL (DISTRICT 3) (#19-2001, 83-2003, 11- 2004, 282005, & 18-2006) * * * 9.24 RESIDENTIAL AND FARMING (DISTRICT 4) (#1-2005,11-2008)) RESIDENTIAL AND RETAIL (DISTRICT 14) (#19-2001, 65-2002, & 83- 2003)

A. RESIDENTIAL AND FARMING (DISTRICT 4) 1. Purpose The purpose of the Residential and Farming District is to provide an area for residential, limited commercial and agricultural development in a rural atmosphere. 2. Permitted Uses a. All the permitted uses of District 3 Multiple Family Residential b. The keeping of personal livestock and poultry, hobby farms, horses c. Sale of farm produce provided the produce is raised or produced on the same premises, and the erection of structures required in connection therewith 3. Administrative Review Uses a. All the administrative review uses under District 3 Multiple Family Residential

App. 158 b. Commercial greenhouses 4. Conditional Uses a. All the conditional uses of District 3 Multiple Family Residential b. Commercial agriculture, horticulture and farming operations c. Commercial stables or riding academies d. Airports and landing fields e. Mobile home, manufactured home and house trailer parks, only in accordance with the provisions of section 9.52, and provided they otherwise comply with this ordinance f. Schools g. Trap and skeet shooting and rifle, pistol, and archery ranges h. Contractor storage yards i. Retail or wholesale business j. Non-metallic mining k. Metallic mineral exploration l. Dog kennels and/or cat boarding facilities m. Animal shelters, as defined in Wis Stats., 173.40(c). n. Wildlife rehabilitation centers pursuant to Wis. Administrative Code NR 19 or facilities subject to a federal permit o. Veterinary clinics or animal hospitals p. Structures used in communications subject to Section 9.54 5. Minimum Lot Sizes The minimum lot size requirements for the Residential and Farming District are

App. 159 contained in Appendix A, which is incorporated herein by reference. For any lot or tract of land that does not meet the minimum size requirements for this district as set forth in Appendix A, see Section 9.75 of this ordinance. B. RESIDENTIAL AND RETAIL (DISTRICT 14) * * * 9.25 RECREATIONAL (DISTRICT 5) (#19-2001 & 12005)

A. Purpose The purpose of the Recreational District is to provide an area for the orderly and attractive grouping of recreational oriented service establishments as well as encouraging the maintenance and enjoyment of the Countys natural resources. B. Permitted Uses 1. All the permitted uses of District 3 Multiple Family Residential 2. Personal stables, not to exceed more than 1 animal/head of livestock per acre. C. Administrative Review Uses 1. All the administrative review uses of District 3 Multiple Family Residential 2. Boat liveries, boat storage, and sale of bait 3. Recreational camps with more than 1 principal structure 4. Commercial riding academies

App. 160 5. Gift and specialty shops customary in a recreation district 6. Servicing of marine, snowmobile, and other recreational vehicles D. Conditional Uses 1. 2. 3. All the conditional uses of District 3 Multiple Family Residential Hotels, motels, and resorts (with 5 or more units) Mobile home, manufactured home and house trailer parks, only in accordance with the provisions of section 9.52, and provided they meet the requirements of this ordinance Restaurants, dinner clubs, taverns, and other private clubs Amusement parks and drive-in theaters Marinas and/or boat launching areas Schools Campgrounds Telephone exchanges and rights-of-way for transmission facilities, telephone, power, utility lines, and structures used in communication Golf grounds Dog kennels and/or cat boarding facilities Animal shelters, as defined in Wis. Stats., 173.40(c) Wildlife rehabilitation centers pursuant to Wis. Administrative Code NR19 or facilities subject to a federal permit Veterinary clinics or animal hospitals

4. 5. 6. 7. 8. 9.

10. 11. 12. 13. 14.

App. 161 E. Minimum Lot Sizes The minimum lot size requirements for the Recreational District are contained in Appendix A, which is incorporated herein by reference. For any lot or tract of land that does not meet the minimum size requirements for this district as set forth in Appendix A, see Section 9.75 of this ordinance. * * *

ONEIDA COUNTY ZONING & SHORELAND PROTECTION ORDINANCE CHAPTER 9 ARTICLE 4 - CONDITIONAL USES AND STRUCTURES/HOME OCCUPATIONS __________________________________________________ 9.40 Conditional Uses 9.41 Application for CUP 9.42 CUP Application Review Process 9.43 Home Occupations __________________________________________________ 9.40 CONDITIONAL USES

A. Purpose This ordinance is based upon the division of the County into districts, within which districts the use of land and buildings, and location of buildings and structures in relation to the land, are mutually compatible. However, there are certain uses that, because of their unique characteristics, cannot be properly classified as unrestricted permitted uses in any particular

App. 162 district or districts without consideration of the impact of those uses upon neighboring land or public facilities, and of the public need for the particular use. Such uses, nevertheless, may be necessary or desirable to be allowed in a particular district provided that due consideration is given to location, development and operation of such uses. Such uses are classified as conditional uses. B. Conditional Use Permit Conditional uses are allowed only upon the issuance of a conditional use permit (CUP), as provided in sections 9.41 and 9.42 of this ordinance. Where applicable, a CUP is required in addition to a zoning permit under Article 3 above. 9.41 APPLICATION FOR CUP A. Applicant Any person having ownership interest in property, an exclusive possessory interest, or a contractual interest in property that may become an ownership or exclusive possessory interest, may apply for a CUP. Prior to final approval of the CUP, the entire tract covered by the CUP or proposed project shall be either under single ownership, evidenced by legal title or binding sales contract or under lease or such other legal control over the land and proposed use which is sufficient to insure that the applicant will be able to carry out the proposed project and assume all liability for the project

App. 163 which would normally be assumed under full land ownership. B. Application Fee The application fee as periodically designated by the County Board shall be paid when the application is filed. C. Filing of Application Application for a CUP shall be made on forms approved by the Committee and available at the Department. A completed application, together with the applicable CUP application fee shall be filed with the Department. A minimum of 3 copies of the completed application must be filed, and the Zoning Administrator may request up to 7 additional copies without charge. The Zoning Administrator shall immediately initial and date one copy of the application when received. D. Additional Information In addition to the information obtained on the application, the Zoning Administrator and/or Committee may request any additional information deemed necessary or appropriate for review. 9.42 CUP APPLICATION REVIEW (Amend #2-2008, 9-2009) PROCESS

A. Completed Applications Referred to Committee 1. The application shall first be reviewed by the Zoning Administrator for completeness. When is deemed complete by the Zoning

App. 164 Administrator, a notation of completeness shall be made on the application, and it shall be referred to the Committee. 2. When a DNR permit or U.S. Corps of Engineers permit is required in order to undertake or complete the proposed project copies of these permits must be attached to the CUP application. The CUP application will not be deemed complete until these other necessary permits are provided. B. Town Recommendation, Notice and Public Hearing The Committee shall seek an advisory recommendation from the town board of the town in which the proposed conditional use is located and shall hold a public hearing on the completed application. Notice of the hearing shall be published as a Class 2 notice pursuant to Ch. 985, Wis. Stats. In addition, at least 10 days prior to the date of the public hearing, written notice of the application and public hearing shall be mailed to the following: 1. The clerk of any municipality exercising extraterritorial jurisdiction where the proposed conditional use is located 2. The clerk of the town where the proposed conditional use is located 3. The applicant C. Issuance or Denial of Application 1. Conditional use permit applications shall be reviewed for completeness by the Zoning

App. 165 Administrator within 30 working days of the date the application is filed and the fee is paid. The Committee shall attempt to approve the application, conditionally approve the application, or deny the application within 60 days of receipt of the completed application. However, at its sole discretion, the Committee may extend this review time for up to a total of 180 days after receipt of the completed application. 2. The Committee may request additional information from the applicant, the town, or others after the receipt of the completed application. If any comments or recommendations are timely received from the town, the Committee, in making its decision, shall consider but is not bound by the towns input. 3. If the application is approved or conditionally approved, the Zoning Administrator shall issue a written CUP with any conditions attached. The Zoning Administrator may require that the applicant and/or property owner sign a recordable CUP agreement expressly accepting the permit conditions. 4. If the application is denied, written reasons for the denial shall be provided to the applicant along with a notice of the applicants right to appeal the denial to the Board of Adjustment. D. Conditions The Committee may attach conditions to the CUP deemed necessary or appropriate in

App. 166 furthering the purposes of this ordinance. Such factors to be considered may include, but are not limited to the following: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Landscaping Type of construction Sureties Lighting Fencing Planting Screening Operational control Period of operation Improved traffic circulation Deed restrictions Free and unlimited access to the project site during daylight hours to any Committee member or any Planning and Zoning employee investigating the projects construction, operation or maintenance Written notification of the Department at least five days before the project is started and five days after each phase of the project is completed. The conditions contained in section 9.97(F). Parking requirements Erosion control Stormwater management Signage Construction schedule An acknowledgment that the nature and extent of the conditional use shall not

13.

14. 15. 16. 17. 18. 19. 20.

App. 167 change from that described in the application and approved in the CUP E. General Standards for Approval of CUP No application for a CUP shall be approved or conditionally approved, unless the Committee finds that the following standards are fulfilled: 1. The establishment, maintenance or operation of the conditional use will not be detrimental to or endanger the public health, safety, morals, comfort or general welfare. 2. The uses, values and enjoyment of neighboring property shall not be substantially impaired or diminished by the establishment, maintenance or operation of the conditional use. 3. The proposed conditional use is compatible with the use of adjacent land and any adopted local plans for the area. 4. The establishment of the conditional use will not impede the normal and orderly development and improvement of the surrounding property for uses permitted in the district. 5. Adequate utilities, access roads, drainage and other necessary site improvements have been or will be provided for the conditional use. 6. Adequate measures have been or will be taken to provide ingress and egress so as to minimize traffic congestion in the public streets.

App. 168 7. The conditional use shall conform to all applicable regulations of the district in which it is located. 8. The conditional use does not violate shoreland or floodplain regulations governing the site. 9. Adequate measures have been or will be taken to prevent and control water pollution, including sedimentation, erosion and runoff. * * *

Appendix A (Amend #30-2004, 19-2006, 14-2008) Minimum lot area and dimensional requirements for uses and zoning districts Acronyms RFW = riparian frontage width ALW = average lot width frt. = frontage All uses not list shall have a minimum lot size as determined by the Zoning Administrator * * *

App. 169 See Fold Out Exhibit District 5 Recreational Chart

App. 170

APPENDIX I Transcript of Proceedings - July 29, 2009 [p.1] IN THE MATTER OF THE ONEIDA COUNTY PLANNING & ZONING COMMITTEE MEETING TRANSCRIPT OF PROCEEDINGS CONCERNING AGENDA ITEM NUMBER 4: Conditional Use Permit Application Submitted by Arthur G. Jaros, Jr., Applicant. DATE: TIME: July 29, 2009 1:00 p.m.

PLACE: Oneida County Courthouse County Board Room Rhinelander, Wisconsin Reported by Holly J. Ford, RMR [p.2] APPEARANCES: Planning and Zoning Committee Members Scott Holewinski, Chairman Ted Cushing Charles Wickman Franklin Greb Larry Greschner

App. 171 Oneida County Corporation Counsel Brian Desmond Outside Legal Counsel Andrew Jones, Attorney at Law Whyte Hirschbeck Dudek, S.C. 555 E. Wells Street, Suite 1900 Milwaukee, WI 53202-3819 Planning and Zoning Personnel Karl Jennrich, Director of Zoning Peter Wegner, Assistant Zoning Director Steve Osterman, Planning Manager Nadine Wilson, Land Use Specialist Kim Gauthier, Secretary Becher-Hoppe Associates, Inc. Dave Oberbeck, Architect Applicant representatives Arthur G. Jaros, Jr., Attorney at Law 1200 Harger Road Oak Brook, IL 60523 Randy Jaros Wes Jaros Town of Woodboro representative Gregory J. Harrold, Attorney at Law Harrold, Scrobell & Daner, S.C. 315 Oneida Street P.O. Box 1148 Minocqua, WI 54548-1148

App. 172 [p.3] PROCEEDINGS CHAIRMAN HOLEWINSKI: We will call the meeting to order. The agenda was properly posted on July 23, 2009. Remind committee members to speak into the microphone so everybody can hear. Item 2: Approve the agenda. MR. CUSHING: So move.

MR. GREB: Second. CHAIRMAN HOLEWINSKI: We have a motion and a second. All those in favor, say aye. COMMITTEE MEMBERS: (In unison) Aye. CHAIRMAN HOLEWINSKI: Opposed? Carried.

Item 3: Approve public hearing meeting minutes of April 29, 2009. MR. GRESCHNER: MR. CUSHING: So moved.

Second.

CHAIRMAN HOLEWINSKI: Okay. A motion and a second. Is there any corrections or changes? Hearing none all those in favor signify aye. COMMITTEE MEMBERS: (In unison) aye. CHAIRMAN HOLEWINSKI: Opposed? Carried.

Item 4: Conditional Use Permit application submitted by Arthur G. Jaros, Jr., Applicant, consisting of the development of a religious Bible camp identified as Eagle Cove Camp and Conference

App. 173 [p. 4] Center for property on Squash Lake. Further identified as part of Government Lots 2, 3, 4 and part of the SW NW, Section 24, T36N, R7E, PIN numbers WB 354-12, 355-1, 356-3, 356-4, 356, 357, 3575, 357-4, all in the Town of Woodboro. The general location of this project is on land situated between Squash Lake and Highway 8. The public hearing was conducted on April 29th, 2009. And an onsite was conducted by the Planning and Zoning Committee on June 26th, 2009. MR. JENNRICH: With that Ill take over. * [p. 57] Item Number 2. MR. JENNRICH: The next item that the Committee should consider is the uses, values and enjoyment of neighboring property shall not in any foreseeable manner be substantially impaired or [p. 58] diminished by the establishment, maintenance, or operation of the conditional use. CHAIRMAN HOLEWINSKI: Okay. Bullet one, will Eagle Cove Camp and Conference Center, as proposed, substantially impair or diminish the use of neighboring properties? If so, are there any conditions that could be placed on the permit to address those concerns? * *

App. 174 Ted? MR. CUSHING: I have a difficult time with this one; however, I think -- I said I have a difficult time, a little bit of a difficult time with this one. I think it probably can have some effect, but I also have to admit that most of these concerns have been addressed. Were talking about the time of the swimming hours on the beach, how many -- I believe youre limiting this to two boats, if Im not mistaken. I think a lot of it has been addressed. I dont think though that -- I cannot say no here, that I can say no here, because I think there will be some effect on the neighboring property owners, it cant help but have some effect. CHAIRMAN HOLEWINSKI: Okay. And I would have to say no. It says substantially impair or diminish. After doing the on-site inspection I feel [p. 59] that it will not substantially impair or diminish the use of the neighboring properties. Larry? MR. GRESCHNER: I guess it all depends on the definition of the word substantially, because I feel putting 300 more people on that lake will. CHAIRMAN HOLEWINSKI: Are conditions that you would put on it to -there any

MR. GRESCHNER: I dont know what conditions could be put on it, really. You got 300 more people on a daily basis.

App. 175 CHAIRMAN HOLEWINSKI: Frank?

MR. GREB: I question, you got two basically boats that youre going to use for water-skiing, boat boarding, when you have 250 people. CHAIRMAN HOLEWINSKI: to get them in our discussion. Frank, I dont want

MR. GREB: Okay. Yeah, I think it would. CHAIRMAN HOLEWINSKI: And any conditions? MR. GREB: Not really. CHAIRMAN HOLEWINSKI: Okay. Charlie?

MR. WICKMAN: Yes. In simple language, yes. I dont see any basis for any conditions. CHAIRMAN HOLEWINSKI: Okay. Will Eagle Cove Camp and Conference Center, as proposed, substantially [p. 60] impair or diminish the values of the neighboring properties? If so, are there any conditions that could be placed on the permit to address those concerns? Larry? MR. GRESCHNER: I dont think we have the answer to that at this point in time. I -- personal opinion, I feel, yes, but we cannot definitively answer that. CHAIRMAN HOLEWINSKI: Frank?

App. 176 MR. GREB: In my own mind, yes, I think it will; however, there is nothing to base it on. CHAIRMAN HOLEWINSKI: MR. WICKMAN: Charlie?

Simple answer, yes. Ted?

CHAIRMAN HOLEWINSKI:

MR. CUSHING: I think it will. And I dont think there is any conditions that can change that. CHAIRMAN HOLEWINSKI: Okay. And I personally dont believe it would. I dont think that the values of the neighboring properties would go up or down based on that camp being there, far enough away. Item Number 3: Will the Eagle Camp and Conference Center, as proposed, substantially impair or diminish the enjoyment of neighboring properties? [p. 61] If so, are there any conditions that could be placed? Frank? MR. GREB: I definitely think it will, and I dont think there is anything we can do to help that out. MR. WICKMAN: change it. Yes. I dont see how we can Ted?

CHAIRMAN HOLEWINSKI:

MR. CUSHING: No, I dont believe -- I dont believe so. I have to say that I was not on the on-site, but after talking to those that were on the on-site, where its located and where that -- where you

App. 177 explained to me specifically where the building setback was, I have to say no. CHAIRMAN HOLEWINSKI: Okay. And I have to say no too because I do not believe that it would be substantially impaired or diminish the enjoyment of the neighboring properties because theyre just using the water, they are only going to have two boats out there, they are only going to have a swimming area, I do not believe it would. CHAIRMAN HOLEWINSKI: Larry?

MR. GRESCHNER: I feel it very definitely would and I dont think there is anything we can do to correct that situation. * * *

App. 178

APPENDIX J State of Wisconsin\DEPARTMENT OF NATURAL RESOURCES Jim Doyle, Governor Matthew J. Frank, Secretary John Gozdzialski, Regional Director Northern Region Headquarters 107 Sutliff Ave Rhinelander, Wisconsin 54501 Telephone 715-365-8900 FAX 715-365-8932 November 16, 2007 IP-N0-2007-44076UW

Mr. Art Jaros Squash Lake Christian Camp, Inc 1200 Harger Rd. Oak Brook, IL 60523 Dear Mr. Jaros: We have reviewed your application for Grading on the banks of Squash Lake, located in the Town of Woodboro, Oneida County. Your application is approved with a few limitations. I am attaching a copy of your permit which lists the conditions which must be followed. A copy of the permit must be posted for reference at the project site. Please read your permit conditions carefully so that you are fully aware of what is expected of you. Also, please

App. 179 provide a copy of this permit to your contractor to ensure they know and understand what is expected. Please note you are required to submit photographs of the completed project on the bank of Squash Lake within 7 days after youve finished construction. This helps both of us to document the completion of the project and compliance with the permit conditions. Your next step will be to notify me of the date on which you plan to start construction and again after your project is complete. If you have any questions about your permit, please call me at 715-365-8991. Sincerely, /s/ James Grafelman James Grafelman Water Management Specialist cc: Mike OKeefe, Project Manager, (715)345-7911, Stevens Point, WI, U.S. Army Corps of Engineers Karl Jennrich, Oneida County Zoning Administrator Jim Jung, Conservation Warden STATE OF WISCONSIN DEPARTMENT OF NATURAL RESOURCES Grading PERMIT IP-N0-2007-44076UW Squash Lake Christian Camp, Inc is hereby granted under Section 30.19(1g)(c), Wisconsin Statutes, a permit for Grading on the banks of Squash Lake, Town of Woodboro, Oneida County, also described as the

App. 180 SW-NW S29, T36N, R7E, subject to the following conditions: PERMIT 1. You must notify James Grafelman at phone 715-365-8991 before starting construction and again not more than 5 days after the project is complete. You must complete the project as described on or before November 15, 2010. If you will not complete the project by this date, you must submit a written request for an extension prior to the expiration date of the permit. Your request must identify the requested extension date and the reason for the extension. A permit extension may be granted, for good cause, by the Department. You may not begin or continue construction after the original permit expiration date unless the Department grants a new permit or permit extension in writing. This permit does not authorize any work other than what you specifically describe in your application and plans, and as modified by the conditions of this permit. If you wish to alter the project or permit conditions, you must first obtain written approval of the Department. You are responsible for obtaining any permit or approval that may be required for your project by local zoning ordinances or by the U.S. Army Corps of Engineers before starting your project.

2.

3.

4.

App. 181 5. Upon reasonable notice, you shall allow access to your project site during reasonable hours to any Department employee who is investigating the projects construction, operation, maintenance or permit compliance. The Department may modify or revoke this permit if the project is not completed according to the terms of the permit, or if the Department determines the activity is detrimental to the public interest. You must post a copy of this permit at a conspicuous location on the project site, visible from the waterway, for at least five days prior to construction, and remaining at least five days after construction. This may be placed in a plastic bag or laminated and posted on the project site. You must also have a copy of the permit and approved plan available at the project site at all times until the project is complete. Your acceptance of this permit and efforts to begin work on this project signify that you have read, understood and agreed to follow all conditions of this permit and agree to instruct your contractor(s) to follow it. You must submit a series of photographs to the Department, within one week of completion of work on the site. The photographs must be taken from different vantage points and depict all work authorized by this permit.

6.

7.

8.

9.

App. 182 10. You, your agent, and any involved contractors or consultants may be considered a party to the violation pursuant to Section 30.292, Wis. Stats., for any violations of Chapter 30, Wisconsin Statutes or this permit. Construction shall be accomplished in such a manner as to minimize erosion and siltation into surface waters. Erosion control measures such as silt fence and straw bales must meet or exceed the standards in the Wisconsin Construction Site Best Management Practices Handbook. Construction of the proposed retaining wall in front of the building shall incorporate native vegetation transplanted from elsewhere on the property or provided by growers of species native to Oneida County. The majority of shrubs and trees transplanted shall be native evergreen species in order to better screen the development. Exotic or non-native species may not be used to stabilize the slopes or be incorporated into the retaining wall. The contractor shall develop and submit an Erosion Control Implementation Plan (ECIP) to the Department for review at least 10 days prior to commencement of construction. Ground may not be disturbed within 35 feet of the Ordinary High Water Mark (OHWM), except as noted on the plans.

11.

12.

13.

14.

15.

App. 183 All equipment used for the project including but not limited to tracked vehicles, barges, boats, silt or turbidity curtain, hoses, sheet pile and pumps shall be de-contaminated for invasive and exotic viruses and species prior to use and after use. Specific disinfection measures are required on infested waters and must be taken prior to moving to another waterbody. The most current decontamination protocols and a list of infested waters can be found at the following website http://dnr.wi.gov/ under the Topic VHSv. If your project is on a non-infested water, the following steps should be taken every time you move your equipment to avoid transporting invasive and exotic viruses and species. To the extent practicable, equipment and gear used on infested waters should not be used on other non-infested waters. 1. Inspect and remove aquatic plants, animals, and mud from your equipment. 2. Drain all water from your equipment that comes in contact with infested waters, including but not limited to tracked vehicles, barges, boats, silt or turbidity curtain, hoses, sheet pile and pumps 3. Dispose of aquatic plants, animals in the trash. Never release or transfer aquatic plants, animals or water from one waterbody to another. 4. Wash your equipment with hot (>1 04 F) and/or high pressure water OR allow your equipment to Dry thoroughly for 5 days.

App. 184 FINDINGS OF FACT 1. Squash Lake Christian Camp, Inc has filed an application for Grading on the banks of Squash Lake, located in the Town of Woodboro, Oneida County, also described as in the SW of the NW of Section 29, Township 36 North, Range 7E. 2. The project will consist of construction of a 42,225 square foot building complex with a vegetated rock gabion retaining wall and emergency road access to the front of the building. All other developments on the site are located away from the lake, are not on the banks of the lake and are not part of this grading permit. 3. The Department has completed an investigation of the project site and has evaluated the project as described in the application and plans. 4. The proposed project, if constructed in accordance with this permit will not adversely affect water quality, will not increase water pollution in surface waters and will not cause environmental pollution as defined in s. 283.01 (6m), Wis. Stats. 5. The project will not affect constructed as proposed. wetlands if

6. The Department conducted a Public Informational Hearing on October 29, 2007 at the request of several members of the public. Twenty-eight individuals completed appearance slips and spoke at the hearing. Thirty letters

App. 185 were received from the public within 10 days of the hearing (4:30 pm, November 9, 2007). A majority of the Issues raised as a result of the hearing pertained to use of the lake, noise, privacy, exotic species, well water, wastewater, developments away from the bank and other issues. These issues are more appropriately addressed under local zoning rules or through other Department authorities. A request was made that the Department complete an Environmental Assessment (EA) under Chapter NR 150, Wis. Adm. Code. Since grading is a Type IV action under Section NR 150.03(8)(f)2, Wis. Adm. Code, this EA is not required. Issues raised regarding water quality, grading on the bank or erosion control may be addressed through permit conditions. The issue of aesthetics or natural scenic beauty was also raised. The Department considers natural scenic beauty a public interest in the respect that impacts to it are reviewed for grading applications. The proposed site of the Squash Lake Bible Camp is not a unique site on the lake. Other sites have been developed on steep gradients, some with manicured lawns to the waters edge. Many lots on the lake contain large homes or other buildings readily visible from the lake and from the opposite shorelines. The Squash Lake Bible Camp proposes to screen the building from the lakes viewshed using native vegetation to the extent possible. The Department concludes that the impact to natural scenic beauty will not be significant if the applicant complies with the permit

App. 186 conditions and their plan to screen the development using native vegetation. 7. The Department of Natural Resources and the applicant have completed all procedural requirements and the project as permitted will comply with all applicable requirements of Sections 1.11, 30.19(1g)(c), Wisconsin Statutes and Chapters NR 102, 103, 115, 116, 117, 150, 299 of the Wisconsin Administrative Code. CONCLUSIONS OF LAW 1. The Department has authority under the above indicated Statutes and Administrative Codes, to issue a permit for the construction and maintenance of this project. NOTICE OF APPEAL RIGHTS If you believe that you have a right to challenge this decision, you should know that the Wisconsin statutes and administrative rules establish time periods within which requests to review Department decisions shall be filed. For judicial review of a decision pursuant to sections 227.52 and 227.53, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to file your petition with the appropriate circuit court and serve the petition on the Department. Such a petition for judicial review shall name the Department of Natural Resources as the respondent. To request a contested case hearing of any individual permit decision pursuant to section 30.209, Wis. Stats., you have 30 days after the decision is mailed, or otherwise served by the Department, to serve a petition

App. 187 for hearing on the Secretary of the Department of Natural Resources, P.O. Box 7921, Madison, WI, 53707-7921. The petition shall be in writing, shall be dated and signed by the petitioner, and shall include as an attachment a copy of the decision for which administrative review is sought. If you are not the applicant, you must simultaneously provide a copy of the petition to the applicant. If you wish to request a stay of the project, you must provide information, as outlined below, to show that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment. The filing of a request for a contested case hearing is not a prerequisite for judicial review and does not extend the 30-day period for filing a petition for judicial review. If you are not the permit applicant, you must provide a copy of the petition to the permit applicant at the same time that you serve the petition on the Department. A request for contested case hearing must meet the requirements of section 30.209, Wis. Stats., and section NR 310.18, Wis. Adm. Code, and must include the following information: 1. A description of the Departments action or inaction which is the basis for the request; and, 2. A description of the objection to the decision that is sufficiently specific to allow the department to determine which provisions of Chapter 30, Wis. Stats., may be violated; and 3. A description of the facts supporting the petition that is sufficiently specific to determine how you believe the project may result in a violation of Chapter 30, Wis. Stats.; and,

App. 188 4. Your commitment to appear at the contested case hearing, if one is granted, and present information supporting your objection. 5. If the petition contains a request for a stay of the project, the petition must also include information showing that a stay is necessary to prevent significant adverse impacts or irreversible harm to the environment. Dated at Northern Region Headquarters, Wisconsin on November 15, 2007. STATE OF WISCONSIN NATURAL RESOURCES For the Secretary /s/ James Grafelman James Grafelman Water Management Specialist DEPARTMENT OF

App. 189

APPENDIX K ONEIDA COUNTY PLANNING & ZONING JUNE 14, 2006 11:30 A.M. - CLOSED SESSION - COMMITTEE ROOM #2 12:30 P.M. REGULAR MEETING - COMMlTIEE ROOM #2 2ND FLOOR, ONEIDA COUNTY COURT HOUSE Members present: Chairman Bob Metropulos Scott Holewinski Frank Greb - Absent Ted Cushing Larry Greschner Kart Jennrich, Zoning Director Pete Wegner, Assistant Zoning Director Steve Osterman, Planning Manager Mary Bartelt, Typist III Larry Heath, Corporation Counsel Brian Desmond, Assistant Corporation Counsel

Department staff present:

Other County Staff:

See Attached Guest List:

App. 190 It is possible that a quorum of the County Board of Supervisors will be at this meeting to gather information about a subject over which they have decision-making responsibility. This constitutes a meeting of the county board pursuant to State ex rel Badke v. Greendale Village Board. Wis 2d 553, 494 n.w. 2d 408 (1993), and must be noticed as such, although the county board will not take any formal actions at this meeting. 1. Call to order. Chairman Metropulos called the meeting to order at 11:40 A.M., in accordance with the Wisconsin Open Meeting Law. 2. Discussion/decision to approve the agenda. MOTION: (Larry Greschner/Scott Holewinski) to approve the June 14th, 2006 agenda. With all members present voting aye motion carries. 3. It is anticipated that the Committee may meet in Closed Session pursuant to Wisconsin Statutes. Section 19.85(1)(g), conferring with legal counsel concerning strategy to be adopted by the governmental body with respect to litigation in which it is or is likely to become involved. A roll call vote will be taken to go into closed session. MOTION: (Larry Greschner/Ted Cushing) to enter into Closed Session, Roll Call Vote: Scott Holewinski aye, Larry Greschner aye, Ted Cushing aye and Chair Metropulos aye, motion carries. Time: 11:42 A.M.

App. 191 4. A roll call vote will be taken to return to open session MOTION: (Larry Greschner/Ted Cushing) to return to open session. Roll Call Vote: Scott Holewinski aye, Larry Greschner aye, Ted Cushing aye and Chair Metropulos aye, motion carries. Time: 12:24 P.M. For the record, the Committee conferred with legal counsel regarding possible litigation. 5. Discussion/decision concerning Rezone Petition #322005 of Squash Lake Christian Camp, Inc., and the Arthur G. Jaros Sr. and Dawn L. Jaros Charitable trust. owners. to rezone lands from #02 Single Family Zoning District and #04 Residential and Farming Zoning District to #05 Recreational Zoning District for property described as part of the SW NW and part of Govt Lot 4, Section 24, T36N, R7E, in the Town of Woodboro, PIN#WB 357 & W8 357-5. Said lands are depicted on Oneida County Certified Survey Map V13 P3107 & P3107A. Document #611861. A public hearing was held April 19, 2006. Chair Bob Metropulos, Sr. gave a brief comment. There will be no additional input or presentations to be made by any of the parties on both sides of the issue. The decisions made by this committee on the issue will be based on the May 15, 2006 and April 19, 2006 hearing and also on additional information received by the deadline on or before June 15, 2006. We also will take in consideration any information which was received after June 15, 2006 deadline prior to todays meeting.

App. 192 Mr. Steve Osterman, Planning Manager, explained to the committee that a public hearing was held on April 19, 2006 and at the conclusion of the public hearing there was motion made and seconded that the oral portion of the public hearing was closed and that written comments would be accepted until the end of the work day on Monday May 15, 2006 and that the Planning and Zoning Committee would consider this matter at 12:30 on Wednesday June 14, 2006. The written comments will include the rebuttal by the Jaross and that motion carried. Mr. Osterman read for the record correspondences after the public hearing, 4/19/06. (EXHIBIT#1) Mr. Osterman read into the record via fax, dated June 9, 2006, from Attorney Gregory Harrold, representing the Town of Woodboro to Karl Jennrich regarding an open records request for copies of any official opinions given by Corporation Counsel to the Planning and Zoning Department regarding Arthur G. Jaros (Squash Lake Christian Camp, Inc.) (EXHIBIT #2) Mr. Osterman read into the record Mr. Jennrichs responding letter to Atty. Harrold, dated June 9, 2006. (EXHIBIT #3) Mr. Osterman read into the record letter dated May 15, 2006 from Attorney Harrold regarding the recommendation from the Town Board of Woodboro. (EXHIBIT #4) Mr. Osterman read into the record a fax, dated May 9, 2006 received from Attorney Harrold regarding a restricted covenant, #630222, recorded on March 14, 2006 in the Register of Deeds Office. (EXHIBIT #5)

App. 193 Mr. Osterman read into the record a letter, dated May 10, 2006 from the Town of Crescent. (EXHIBIT #6) Mr. Osterman read into the record a letter dated May 12, 2006 from Squash Lake Christian Camp to the Planning and Zoning Committee regarding letter of response to May 1, 2006 letter of Dr. Jim Dyreby. (EXHIBIT #7) . Both Mr. Osterman and Mr. Karl Jennrich, Zoning Director read into the record a letter dated May 10, 2006 from Arthur G. Jaros, Jr. President for Squash Lake Christian Camp regarding response to letters of objectors. (EXHIBIT #8) Mr. Larry Heath, Corporation Counsel, Just for the record, did the Zoning Department send out copies of those of what you just read to the committee members? Mr. Jennrich, Zoning Director, Yes Mr. Heath, And its my understanding that the Committee members have read that letter prior to this meeting, is that a fair statement? Committee responds, Certainly Mr. Scott Holewinski, Larry we have read everything accept what was received after the cutoff date. Mr. Heath, Alright, thank you. Mr. Jennrich reads into the record a letter from Squash Lake Christian Camp Inc. Arthur G. Jaros, Jr. President, dated May 15, 2006. Mr. Heath, Well let me just interject here, is it satisfactory to present here that the committee has

App. 194 stated they read everything up to the cutoff date? (Mr. Heath asking Mr. Arthur Jaros) Mr. Jaros, The May 15, 2006 letter is satisfactory, the letter that Karl is referring to now, thats fine. If there are other ones, lets take them one at a time. Mr. Jennrich, Yes, May 15, 2006, from Arthur G. Jaros, President and there is another letter here from Wes Jaros by precedence Squash Lake Christian Camp, Inc. fax date 5/15/06. Mr. Arthur G. Jaros, Wed like those read because the objective letters were read. Mr. Jennrich reads into the record fax letter dated May 15, 2006 from Wes Jaros. (EXHIBIT #9) Mr. Steve Osterman, read into the record a faxed letter dated May 15, 2006 from Randall S. Jaros. (EXHIBIT #10) Mr. Karl Jennrich explained that correspondence was received after the deadline date of May 15, 2006. Mr. Jennrich read into the record a letter dated May 16, 2006, which was faxed to the Planning & Zoning Department on May 17, 2006, letter directed to Mr. Larry Heath from Arthur G. Jaros. This letter was not given to the Planning & Zoning Committee. Mr. Larry Greschner, Mr. Chairman, I think the motion reads, cutoff May 15, 2006, all verbal and written. I have no problem if those are to the record, to the date, who to and who from, but I dont think this should be something that we should be listening to, to be very honest with you. Because it contradicts our motion of May 15, 2006

App. 195 Chair Bob Metropulos, I will refer to Counsel. Mr. Heath, I would recommend that if the one that you are referring to I think is in response to the Towns denial? Mr. Jennrich, Correct. Mr. Heath, You did receive the Towns recommendation on either the deadline date or the next day, is that right? Mr. Jennrich, Yes, on the deadline date. Mr. Heath, So the applicants here did not have an opportunity to respond to that by the deadline date. You have read, or are aware of the Towns recommendations, are you not? (Mr. Heath asks the committee) Chair Metropulos, Yes, I am and I think we all are. Mr. Holewinski asks how many responses were received after the cutoff date. Mr. Jennrich, Well we have this letter of May 16, 2006 regarding additional legal consideration, Rezone Petition #32-2005. Also received was a ten-page document dated June 8, 2006, which we received June 9, 2006 regarding this refutation from Arthur G. Jaros, Jr. President. Mr. Heath, Has that already been read? Mr. Jennrich, No. Mr. Heath, Certainly make it a record, but can we just refer to your (Mr. Jaross) specific refutation and not have to read over again the towns statement.

App. 196 Mr. Arthur G. Jaros, Jr., Certainly, and if you use the one June 8, that would be appreciated. Mr. Heath, Alright, so on the June 8TH one, just read whats in italics English. Mr. Jaros, That would be great. Mr. Heath, I think those should be read into the record, the italic responses I recommend that you allow the responses from the applicants to be part of the record. Just read the italics. Mr. Karl Jennrich reads into the record a letter dated June 8, 2006, via Federal Express, from Mr. Arthur G. Jaros, Jr., President, Squash Lake Christian Camp, Inc. (EXHIBIT #11) Chair Metropulos asks if there correspondence. There are none. Committee recessed - 2:25 P.M. Committee reconvened - 2:37 P.M. Chair Metropulos asks for the staffs recommendation on the Jaros Rezone Petition #32-2005. Mr. Jennrich stated that both he and Mr. Steve Osterman had a chance to work on a position of the staff to give to the committee. This is just a recommendation to the committee by staff on what to do with the rezone petition but it is ultimately the decision of the Planning & Zoning Committee. Mr. Jennrich reads for the record the General Information to the committee. (EXHIBIT #12) Rezoning Petition #32-2005, change from Single Family Residential District and Residential & Farming are anymore

App. 197 District to District #05 Recreational for land described as Oneida County Certified Survey Map #003107 being part of the SW NW and Govt Lot 4 Section 24 T36R 7E located in the Town of Woodboro. A public hearing was held on April19, 2006 and this report was prepared on Jun~ 13, 2006 by Steve Osterman, Planning Manager and Karl Jennrich, Zoning Director. Staff recommendation is to deny the rezone petition. Mr. Jennrich reviewed Section 9.86 F General Standards to the committee. Mr. Jennrich reads the General Standards. Chair Metropulos explains that the Planning & Zoning Committee received the Planning and Zoning Committee Findings, which is basically a checklist of questions and asks that the committee go through all of them. 1. Whether the change is in accord with the purpose of this ordinance Would the rezone, if granted, be consistent with the purpose statements of the Oneida County Zoning Code as referenced in the staff recommendations? Comments Mr. Scott Holewinski, Under 9.11 the purpose that Mr. Jennrich stated in his findings under the next page, It is further the goal of this ordinance to promote the following specific purposes, under D1 it says control building sites, placement of structures and land use through separating conflicting land uses. Therefore, it does not want those mixed in with the residential. I dont believe that under the

App. 198 zoning districts, when you look at the purpose of recreational is too far different then a single family which is the most restrictive. So, I dont believe it does. Mr. Larry Greschner, Not whatsoever. The committee agrees that the rezone would not be consistent with the purpose statements of the Oneida County Zoning Code. Does the 7th Circuit Court of Appeals definition of substantial burden on religious exercise, as set forth in the C.L.U.B. case and referenced in the staff recommendations apply to this rezone request? Comments Mr. Brian Desmond, Assistant Corporation Counsel, explains that this bullet point is getting at more of a procedural question in the law that the 7th Circuit Court of Appeals decisions being that Wisconsin is a part of that circuit, that their decisions are binding upon us and their rulings are binding upon the actions of the Planning & Zoning Committee. The procedural question is to whether or not the law that they have set out is the law that we have to follow. Mr. Scott Holewinski, I agree with that. Committee unanimously agrees with the second bullet (b). Does the current zoning allow for religious exercise in both of the zoning districts on the property? In what form?

App. 199 Comments Chair Metropulos, Well, we know that they can have a church and also have living quarters and they are allowed to do exercise their religion. Mr. Holewinski, They are allowed to exercise their religion, but maybe not to the magnitude that they would want, but they are allowed to do it. Committee unanimously agrees with the third bullet (c). Has Oneida County previously granted Conditional Use Permits allowing religious exercise in the Zoning district, Single Family and Residential and Farming, that are currently in place on the parcel that is subject to the rezone petition? Comments Committee agrees with bullet #4. Mr. Jennrich, Yes, we did some research and found four Conditional Use Permit approved applications in Single Family/Residential. Mr. Heath, I would suggest to you that there is a consensus or not. Committee unanimously agrees with bullet number four (d). Was the development allowed with the previously issued conditional use permits for religious institutions, similar or the same as allowed by governmental entities and secular applicants?

App. 200 Comments Mr. Brian Desmond, That is in reference to what is allowed in Single/Family zoning district where the issue has been raised that in Single Family you are allowed to have recreation fields, government meeting halls. Community living arrangements and governmental uses and public parks and playgrounds are discriminatory because it gives more of a, it allows more uses for the government and non-religious entities. Have we previously issued conditional use permits for religious entities that allow for playground type areas, park type areas, meeting rooms, class rooms, things of that nature that these secular and governmental uses are allowed? Committee agrees fully with bullet number 5 (e). Does the Oneida County currently have any Planned Unit Development Ordinance? Comments Mr. Jennrich, We do not. Committee agrees fully with Mr. Jennrich for bullet number 6 (f). Does Oneida County have any other ordinance that would allow for development control if the rezone were granted? Comments Mr. Jennrich, No. Committee agrees fully with Mr. Jennrich for bullet number 7 (g)

App. 201 Would any delay, uncertainty or added expense have to be born by the parties seeking this rezone, given that religious exercise is allowed on the property with a conditional use permit in the districts that the property is currently zoned? Comments Committee unanimously agrees that there would be no delay, uncertainty or added expense born by the parties seeking this rezone. Bullet number 8 (h) Based on the current zoning of the parcel subject to the re-zone request, could the petitioner achieve most or all of their stated objectives? Comments Committee unanimously agrees that the petitioner could achieve most or all of their stated objectives. Mr. Holewinski, Maybe not to the magnitude which he has presented, but he could achieve the objective. Unanimously agreed, yes to bullet number 9 (i) Based on the foregoing conclusions, would a substantial burden on religious exercise be effectuated by a denial of Rezone Petition #322005? Comments Committee unanimously agrees that the petitioner would not suffer substantial burden on religious exercise be effectuated by a denial of

App. 202 Rezone Petition #32-2005. Unanimously agreed no to bullet number 10 (j) Does the Committee believe that a Compelling governmental interest exists in protecting the landowners affected by this rezone petition from the inconsistent land uses that would be available under a zoning classification of Recreational District #05 Comments Committee unanimously agree with bullet #11 (k) What uses would be allowed in Recreational District #5 that would be inconsistent with the surrounding Single Family Residential district. Comments Mr. Jennrich, Under the Recreational Zoning district we allow all the permitted use in District #3 Multi-Family so you would be looking at multi-family develops that would be allowed within that zoning district. Personal stables. Administrative Review Uses, all the administrative review uses of District #3, Multifamily, boat liveries, boat storage and sale of bait, recreational camps with more then one principal structure, commercial riding academies, gift and specialty shops customary in a recreational district, servicing a marina, snowmobile and other recreational vehicles. The CUPS that would be allowed are all the conditional uses of District #3, Multifamily/Residential, hotels, motels and resorts of five units or more, mobile home, manufactured

App. 203 home and house trailer parks, restaurants, dinner club, taverns and other private clubs, amusement parks and drive-in theaters, marinas for boat launching areas, schools, campgrounds, telephone exchanges of right of ways, golf grounds, dog kennels, animal shelters, wildlife rehabilitation centers and veterinary clinics would all be allowed in the Recreational zoning district. Whereas, when you look at Single Family you are looking as single family uses primarily, gardens, customary home occupations, harvesting of any wild crop and the conditional uses would be the churches and schools, libraries, community buildings, community living arrangements, governmental uses, bed and breakfasts, public parks and preexisting licensed resorts. Residential Farming, the uses that are permitted, back to Multi-family, you could have livestock, sale of farm produce. Administrative Reviews of Multi-family, commercial greenhouses. Conditional uses of District #3, Multi-Family/Residential would be commercial agriculture/horticulture, commercial stables, airports and landing fields, mobile home, manufactured homes, house trailer parks, schools, trapping, skeet, shooting the rifle, pistol and archery ranges, contractor storage yards, retail and wholesale business, non-metallic mining, dog kennels and or cat shelter, animal shelter, wildlife, veterinary clinics. No consensus by the Committee for bullet #12 (l).

App. 204 Given that religious exercise is allowed with a conditional use permit in the districts that the subject parcel is currently zoned and that rezoning to a Recreational (District 5) zone allows for a multitude of inconsistent uses with the surrounding, longstanding single family districts and the lack of development controls if the property is re-zoned, is there any less restrictive means to further the Countys compelling governmental interests in this rezone besides following the staff recommendation of denial? Comments Committee unanimously agree with no that there would be any less restrictive means to further the Countys compelling governmental interests in this rezone beside following the staff recommendation of denial. Bullet #13 (m) 2. Whether the change is consistent with land use plans of the County, the affected town, and Towns adjacent to the affected town. Does the County currently have a land use plan? Comments Committee unanimously agrees that the County does not have a land use plan. Has the Town of Woodboro adopted a land use plan? Comments Committee unanimously agrees that the Town of Woodboro has adopted a land use plan. YES

App. 205 In what manner is the requested rezone consistent and/or inconsistent with the Land Use Plan of the Town of Woodboro? Comments Mr. Scott Holewinski, I would feel that the requested rezone is inconsistent with the Land Use Plan of the Town of Wooboro. Full consensus by the committee. Mr. Brian Desmond, Then you should put on the record with some reasons why youve (Planning & Zoning Committee) come to this conclusion or what youre reasoning is behind that. Mr. Cushing, Woodboro basically has Single Family Zoning in lake districts on waterfront property and they have no Recreational Zoning in their township. What if any recommendation has the Town of Woodboro given to the County with regard to the requested rezone? Comments The letter on record by the Town of Woodboro recommending denial. Has any other town commented on the requested rezone? Comment Yes, the letter on record by the Town of Crescent opposing the rezone petition.

App. 206 3. Whether conditions have changed in the area generally that justify the change proposed in the Petition. Have their been any recent changes that would justify the granting of the rezone petition? Comment Committee unanimously agrees that there have been no recent changes that would justify the granting of the rezone petition. 4. Whether the change would be in the public interest. How was the public notified of Rezone Petition #32-2005 Comment Mr. Jennrich stated that a notice of public hearing and a mailing to the adjoining property owners and the Town Board of Woodboro and published in the newspaper. What was the public response to Rezone Petition #32-2005? Comment Overwhelming opposed to the rezone. 5. Whether the character of the area or neighborhood would be adversely affected by the change. Again what uses would be available under District 5 recreational zoning? Comment This was discussed in bullet #12 (l) (See page 7)

App. 207 How would, if at all, the character of the area be changed if Rezone #32-2005 were granted? Comment Mr. Holewinski, If the property was rezoned to District 5 and the camp was not built, the area would be definitely changed. The whole residential area would change drastically. Mr. Heath, Any of the uses in Recreation would be allowed if it were changed. 6. Whether the uses permitted by the change would be appropriate in the area. What type of zoning does the Woodboro town land use plan designate for this area? Comment Residential and Residential/Farming Would this rezone petition, if granted, based on the staff recommendations and previous conclusions be appropriate for the area? Comment Committee unanimously agrees that the rezone petition, if granted would not be appropriate for the area. 7. Whether the town board of the town in which the change would occur approves of the change. Does the Town of Woodboro object to the Rezone Petition #32-2005? Comment Committee unanimously agrees that yes the

App. 208 Town of Woodboro does object to the Rezone Petition #32-2005 and that it is on record. 8. The size of the property that is the subject of the proposed change. Comment Mr. Holewinski, This has been defined as thirty plus acres. 9. Whether the area to be rezoned is defined by recognizable or clearly definable boundaries such as those found in U.S.G.S. Land Office Survey maps or recorded plats, or those created by highways, railroad rights-of-way, meandering streams or lakes. Comment Mr. Ted Cushing, This has already been defined and pointed out by staff under 9.86 (9) 10. Position of affected landowners. Comment Mr. Larry Greschner, That is on record with documentation of all of it. Mr. Holewinski, It just doesnt affect the nearby landowners, it affects all the landowners around the lake. Chair Metropulos asks the committee if they have any more discussion. MOTION: (Scott Holewinski/Ted Cushing) that the General Standards of Approval of the rezone have not been met and that the Planning & Zoning Committee follow staff recommendation

App. 209 and deny the rezone petition and forward on to the Full County Board. Roll Call Vote: Scott Holewinski aye, Larry Greschner aye, Ted Cushing aye and Bob Metropulos aye. All aye, motion carries. Mr. Heath, I would ask that you (Chair Metropulos) ask the committee whether it would be appropriate to have findings prepared consistent with the committees action today to be signed by the chairman in behalf of the committee consistent with your actions today. The findings should be finalized and signed off by the committee so they could be of record based of your action today. The Planning and Zoning Committee directs Planning and Zoning Staff and the Corporation Counsel office to prepare the findings. MOTION: (Ted Cushing/Larry Greschner) to direct staff in conjunction with Corporation Counsel office to prepare a document of findings for Planning & Zoning Committee Chairman to sign. All aye on voice vote. Motion carries. 6. Adjourn. 3:27 PM There being no further matters to lawfully come before the Committee, a motion was made by Bob Metropulos, second by Ted Cushing to adjourn the meeting. With all members present voting aye, the motion carried. /s/ Bob Metropulos Chairman Bob Metropulos /s/ Karl Jennrich Karl Jennrich, Zoning Director

App. 210

APPENDIX L

App. 211

APPENDIX M See Fold Out Exhibit Zoning Map of Riparian Lands at Squash Lake

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Case: 3:10-cv-00118-wmc Document #: 51-21

Filed: 06/03/11 Page 1 of 1

WOODCREST CIR

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Exhibit 21

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Oneida County Zoning Map Squash Lake

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See Zoning Document

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Oneida County Land Information Office Thursday, March 31, 2011 11:40:54 AM V:\Projects\Pz\special_projects\Jaros\2011\Final_PDF\21_Squash Lake.mxd