Burns v. City of Madison

• Decision Date: 06 November 1979
• Docket Number: No. 76-663,76-663
• Citation: 284 N.W.2d 631,92 Wis.2d 232
• Parties: Mary Anderson BURNS et al., Plaintiffs-Appellants, v. CITY OF MADISON and Robert W. Friess, Building Inspection Superintendent, City of Madison, Defendants-Respondents, General Investment Services, Inc., a Wisconsin Corporation, and Heritage Building and Development Corporation, a Wisconsin Corporation, Intervening Defendants.
• Court: Wisconsin Supreme Court

Page 631

284 N.W.2d 631

92 Wis.2d 232

Mary Anderson BURNS et al., Plaintiffs-Appellants, v. CITY OF MADISON and Robert W. Friess, Building Inspection Superintendent, City of Madison, Defendants-Respondents General Investment Services, Inc., a Wisconsin Corporation and Heritage Building and Development Corporation a Wisconsin Corporation, Intervening Defendants.

No. 76-663.

Supreme Court of Wisconsin.

Submitted on Briefs Oct. 10, 1979.

Decided Nov. 6, 1979.

An alternative writ of mandamus issued and the City of Madison and the Building Inspection Superintendent moved to quash the writ. Pursuant to stipulation of the parties, Development Services, Inc. (presently General Investment Services, Inc.), and Heritage Building and Development Corporation, owners and developers of the subdivision, were permitted to intervene as defendants. The intervening defendants also filed a motion to quash the alternative writ of mandamus.

An order was entered quashing the alternative writ of mandamus and dismissing the petition of the plaintiffs-appellants, and the plaintiffs now appeal.

Law Offices of Howard Goldberg, S. C., Madison, for plaintiffs-appellants.

Henry A. Gempeler, City Atty., and James M. Voss, Asst. City Atty., for defendants-respondents.

William F. Mundt, Fred Gants and Murphy, Stolper, Brewster & Desmond, S. C., Madison, for intervening defendants.

HANSEN, Justice.

The principal issue in this case arises out of the fact that the exterior boundary of the plat of Heritage Downs Subdivision included a replat of "Outlot A" of the Third Addition to Midvale Heights. "Outlot A" is a strip of land 18 inches wide and 430 feet in length.

It appears that the Madison city ordinances do not require a public hearing prior to the approval of a subdivision plat, while the ordinances do require a public hearing for a proposed replat of a recorded subdivision.

The record reveals the following facts. On November 24, 1975, the owner and/or developer of the subdivision known as Heritage Downs Subdivision submitted a preliminary plat of the subdivision to the Madison Plan Commission for approval. On November 24, 1975, the preliminary plat was approved by the Plan Commission without a public hearing. On November 25, 1975, the preliminary plat was approved by the common council of the City of Madison. On or about April 12, 1976, the final plat of the subdivision was approved by the Plan Commission, and on April 13, 1976, the final plat was approved by the common council, subject to the developer complying with certain conditions. On May 13, 1976, the plat was recorded in the office of the Register of Deeds for Dane county.

After the plat was recorded, the appellants discovered that the plat of Heritage Downs included a replat of "Outlot A" of the Third Addition to Midvale Heights. The appellants informed the Madison Plan Commission that the preliminary plat and final plat of Heritage Downs were adopted contrary to the procedures set forth in sec. 16.23 of the Madison municipal ordinances which require notice and public hearing before a replat can be approved.

A series of meetings was held between various representatives of the City of Madison and the petitioners, and the city attorney ultimately advised the Plan Commission that building permits for lots in Heritage Downs could not validly be withheld. The Building Inspection Superintendent then issued two building permits for lots in the subdivision. The petitioners demanded that he rescind the permits and issue no additional permits. The Building Inspection Superintendent refused to comply with these demands and the appellants then petitioned for an alternative writ of mandamus.

Appellants allege in their petition for an alternative writ of mandamus that the duty of the Building Inspection Superintendent set forth in sec. 16.23(3) (c) of the Madison general ordinances is absolute and not discretionary and the withholding of building permits is a ministerial act or duty. They also allege:

" . . . That the continued delay in this matter will result in needless damages if development is to proceed due to the fact that the Building Inspection Superintendent has violated the clear duty set forth, as above stated, in the Madison Municipal Ordinances."

Attached to the petition are the affidavits of certain of the petitioners which set forth the following facts. The petitioners reside in the immediate neighborhood of the Heritage Downs Subdivision. It recently came to their attention that the Heritage Downs Subdivision plat was recorded on or about May 13, 1976. Prior to May 13, 1976, the plat was submitted to the City of Madison for approval, but petitioners were never advised by the city that the plat was being submitted for approval, nor advised of any public hearing to be held regarding such approval, nor were any legal notices published in the newspapers in the city advising of any public hearing regarding the plat. If petitioners had been advised of a public hearing and had a public hearing been held, they would have made every effort to attend the hearing. Had petitioners been able to attend a public hearing, they would have been interested and concerned as to the layout of the plat, the location of public sidewalks, the location of streets, the nature of traffic patterns, the location of snow storage easements, the location of public sign easements, the layout of lots, and the naming of streets. Upon learning of the approval of the plat, petitioners were discouraged and dismayed to discover that the creation of two cul-de-sacs had seriously affected traffic patterns in the area, that the naming of the two non-connecting streets in the plat with the same name will cause a great deal of confusion in the area, and that there had been no planning with regard to the saving of existing trees and topography regarding drainage and the placement of public sidewalks. Had a public hearing been held, many of these concerns would have been made known by petitioners to the Madison Plan Commission and the Madison city council.

During the proceedings in circuit court a stipulation of facts was filed by the parties. The following facts which did not appear in the petition, appear in the stipulation. The plat for the Heritage Downs Subdivision consisted of approximately 230,250 square feet of land, roughly 430 square feet of which were part of a previously recorded plat denoted the "Third Addition to Midvale Heights." The preliminary plat of the Heritage Downs Subdivision proposed that this 430 square feet be incorporated into the Heritage Downs plat. This fact was clearly indicated on the preliminary plat as submitted. The land to be transferred from one plat to the other consisted of an 18 inch wide strip, 430 feet in length, denominated as "Outlot A," and extending across the back side of several lots in the Heritage Downs plat. When the Third Addition to Midvale Heights was platted, "Outlot A" was created for the purpose of preventing the extension of three streets which formed dead-end "U" streets. When it no longer appeared necessary or desirable to protect against the extension of the "U" streets, the titleholder deeded the 18 inch strip to the abutting lots. The deed contained a reversionary clause, that should such land ever be used for street purposes, the property would revert to the grantor. The grantees thereafter conveyed title to "Outlot A" to the platters of the Heritage Downs Subdivision. Seven of the petitioners live within the Third Addition to Midvale Heights or within two hundred feet of "Outlot A". ¹ Petitioners were requesting the court for permission to amend the pleadings to show damage to residents who were suffering from adverse traffic conditions, adverse volume of traffic, and whose property and the lives of the children would be best suited by having a through street instead of two cul-de-sacs, all of which would have been developed in a public hearing had it been held, and alleged that the elimination of the cul-de-sacs might improve property values.

The issues presented on appeal are:

1. Whether sec. 16.23(3)(c) of the Madison general ordinances requires the denial of building permits when a preliminary plat of a replat is approved without a public hearing?

2. Whether the petition for alternative writ of mandamus alleges facts sufficient to support the issuance of a writ?

Appellants basically allege in their petition that in November, 1975, the preliminary plat of the Heritage Downs Subdivision was approved by the Madison Plan Commission without a public hearing and was approved by the Madison common council. The final plat of that subdivision was later approved by the Plan Commission and common council, and recorded. A portion of the exterior boundary of the Heritage Downs Subdivision plat called "Outlot A," was formerly a portion of the exterior boundary of the Third Addition to Midvale Heights subdivision, which was a previously recorded plat, and therefore a public hearing was required before the Heritage Downs plat could be approved and recorded. Since there was no public hearing, the appellants argue the trial court abused its discretion in quashing the petition for the writ.

A motion to quash a writ of mandamus is deemed a demurrer to a complaint. State ex rel. Dalton v. Mundy, 80 Wis.2d 190, 194, 257 N.W.2d 877 (1977); State ex rel. Farley v. Board of School Directors, 49 Wis.2d 765, 769, 183 N.W.2d 148 (1971). The issue on review of the granting of a motion to quash a writ of mandamus is whether the facts alleged in the petition state a cause of action. Watkins v. Milwaukee County Civil Service Comm., 88 Wis.2d 411, 419, 276 N.W.2d 775 (1979); State ex rel. Dalton v. Mundy, supra, 80 Wis.2d at 194, 195, 257 N.W.2d 877. The facts as pleaded are, for the purposes of the motion, considered to be true and the petition must be liberally construed. State ex rel. Farley v. Board of School Directors, supra, 49 Wis.2d at 769, 183...