Sellers' attorney says developer seeks zoning change to avoid profit-sharing; commission tables decision

The West Bend Plan Commission opened public hearings July 7 on a proposed 2020 comprehensive plan amendment (Amendment No. 47) and associated zoning changes affecting about 72.3 acres at the southeast corner of South Main Street and West Rusco Drive. Staff said the developer is asking to remove the multifamily building type and reclassify land to RD-2 (two-family) and RS-4 (single-family) while adjusting street patterns and unit types.

The Bone family's attorney, Josh Tagitz, told the commission he represents sellers who included a profit-sharing addendum to the purchase agreement that would entitle them to a share of profits if the land were used for anything other than single-family or duplex housing. "If Mr. Simon were to get multifamily approved and thereby stand to gain significantly increased profits, my clients then would share in those profits," Tagitz said. He urged the commission not to approve changes that would, in his view, improve the developer's legal position and "deceive" his clients.

Why it matters: The Bone family's testimony frames the land-use request as potentially influencing a private contract dispute and raises questions about whether the commission's decision could affect the parties' future civil litigation. Staff repeatedly reminded the commission its legal duty is to decide land-use matters under state statute and city code, not to rule on private civil claims.

Staff and developers: City planning staff and the developer's representative explained the proposed design changes. Planner Jim said the developer revised road patterns and building types, resulting in a net reduction of about 16 units across the subdivision (single-family units from 96 to 88; "ranch villa" two-family units from 146 to 128; townhouse units increased from 140 to 150). John (city staff) clarified the construction approach: the duplexes are proposed to be built essentially abutting with a 1-inch gap and treated as separate buildings under state code, with lot lines running down that gap so each unit is fee-simple ownership rather than condominium.

Seller testimony: Lynn Bone, one of the sellers, described meetings and conversations with the developer and said the stated reasons for the change (loan rates, sprinkler systems, ADA, grades) were not legitimate reasons for the requested zoning changes. "What Scott is doing to my family is unfair," Bone said, asking the commission not to approve 0 lot lines or any changes that would negate the profit-sharing terms in their agreement.

Developer response and commission scope: Developer Scott Simon addressed landscaping and said entrance berms and planned landscaping would address buffer concerns; he characterized the sellers' dispute as a civil matter and said his intent is to build only single-family or duplex units. Commissioners pressed staff and the developer for site plans and a PUD overlay to clarify density, lotting, and the exact configuration before any final approval.

Outcome and next steps: The commission closed both the land-use and zoning public hearings and voted to table action on Amendment No. 47 and the corresponding zoning amendment until the August meeting. Staff said one required public notice was rescheduled because of a newspaper notice error, and the commission directed that a PUD overlay and site-plan materials be available before final action. The commission's tabling motion carried by voice vote.

What remains unresolved: The profit-sharing allegation remains a civil matter outside the commission's authority; commissioners and staff emphasized their decision must be based on land-use criteria. The commission will revisit the items in August after the PUD/site-plan materials are submitted and after the rescheduled public hearing.