Letters to the Editor: ‘Recuse yourself,
August 02, 2019
To the Editor:
On Aug. 7 at 1 p.m., the Oneida County Board of Adjustment (BOA) will hold a Public Hearing in Rhinelander pursuant to Appeal No. 19-001. This matter involves the rezoning of a forested land parcel in the Town of Hazelhurst and the approval of a Conditional Use Permit allowing the expansion of a gravel pit operation on the parcel. Members of the BOA will travel to, and inspect the site, sometime after 10 a.m. on Aug. 7, and this inspection is open to the public. That’s all well and good, but I have a niggling concern about the chairman of the BOA, Harland Lee: Exactly how impartial will he be as he presides over this hearing?
Mr. Lee has already had his say regarding this matter. After a public hearing in Hazelhurst on March 14, 2019 and in his capacity as a town supervisor, Mr. Lee indicated that because a gravel mine had operated on the site (albeit some people would contend without the benefit of permits) for many years, the new owners of the mine should be allowed to expand onto the existing forestland to the north. As a Hazelhurst town supervisor, Mr. Lee had already voted to approve the rezoning of the subject property on April 10, 2018, and his subsequent March 14 vote to approve the Conditional Use Permit application helped send the matter forward to the county board. Given those previous votes and his publicly stated opinion, Harland Lee really has no place now at the BOA table when the matter is discussed on Aug. 7. In my mind, his presence is prejudicial to the fairness of those proceedings and accordingly, Mr. Lee should recuse himself from discussion and involvement in this matter.
Recusal (which simply put, means stepping aside to let others make a particular decision) should not be an altogether unfamiliar concept here in the Northwoods. In fact, the Zoning Board Handbook for Wisconsin Zoning Boards of Adjustment and Appeals (2nd ed., 2006), spells out several important instances where recusal may be necessary. First — and unfortunately this ship has already sailed here in Oneida County — the handbook suggests that persons elected to an office not be then appointed to act on a zoning board. This is logical and is precisely the situation we have here: How objective can Harland Lee be now as chair of the BOA, when he has previously voted on the same zoning matter as a Hazelhurst town supervisor? The Handbook states “The potential lack of objectivity or even appearance of such could lead to litigation,” and indeed here we are, embroiled in litigation and an appeal because of what many Hazelhurst property owners deem as unfair decision-making exacerbated by elected leaders who serve at both the town and the county levels.
The Handbook further calls out zoning decision-makers, saying that if “you do not feel you can be and appear impartial in a given decision, the best approach is to recuse yourself. To recuse yourself, do not vote and do not have any discussion or involvement in the matter in question.” This language parallels that in Wisconsin law wherein a judge shall recuse themselves if he or she handled a matter in a lower court or if he or she “determines that, for any reason, he or she cannot, or it appears he or she cannot, act in an impartial manner” (see Wisconsin Statute Section 757.19 (2) (e) and (g)).
Far too often in Oneida County our elected leaders with dual appointments at both the town board and county board/county committee levels do not exercise their obligation to remove themselves from the decision-making process when it comes to zoning issues. Instead, questionable zoning decisions made at the town level are recycled when the very same people vote again on the matter at the county level. Regarding Appeal No. 19-001 the damage may already have been done: The June 19 BOA meeting minutes indicate that the board met in closed session to discuss the matter, but there is no mention that chairman Lee recused himself. This is unfortunate, and consequently, I continue to hold out the concern that this matter will not really be dealt with in the most fair and impartial way possible.