Dawson v. Town of Jackson
| Decision Date | 06 January 2010 |
| Docket Number | No. 2009AP120.,2009AP120. |
| Citation | 780 N.W.2d 222,2010 WI App 24 |
| Parties | Dale DAWSON, Gudrun Dawson and Edward Thomas, Plaintiffs-Respondents, v. TOWN OF JACKSON, Defendant-Respondent, Town of Cedarburg, Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
On behalf of the defendant-appellant, the cause was submitted on the briefs of Brad M. Hoeft of Huiras, Farrell & Antoine, S.C., Port Washington.
On behalf of the defendant-respondent, the cause was submitted on the brief of Daniel L. Sargeant of Schloemer Law Firm, S.C., West Bend.
On behalf of the plaintiffs-respondents, the cause was submitted on the brief of John M. Bruce of Schober Schober & Mitchell, S.C., New Berlin.
Before BROWN, C.J., ANDERSON and SNYDER, JJ.
¶ 1
The Town of Cedarburg appeals from a declaratory judgment in favor of Dale and Gudrun Dawson and Edward Thomas (the Dawsons). The Dawsons sought to discontinue a portion of a town highway shared by Cedarburg and the Town of Jackson. Jackson approved, Cedarburg did not. Cedarburg contends that the Dawsons should have sought certiorari review under WIS. STAT. § 82.15 (2007-08)1 rather than bringing an action for declaratory judgment. It also contends that the circuit court incorrectly interpreted the way town board member votes should be counted when boards act under WIS. STAT. § 82.21, which sets forth the procedure to lay out, alter, or discontinue a town highway that is situated on the line between one town and another. Cedarburg further asserts that the Dawsons' current position on how votes should be counted is inconsistent with their prior actions; therefore, equitable estoppel bars their claim. We disagree with Cedarburg and we affirm the declaratory judgment.
¶ 2 The Dawsons applied to both towns, Cedarburg and Jackson, seeking to vacate a portion of the town highway known as Wausaukee Road. Wausaukee Road lies on and across the municipal boundary lines of Cedarburg and Jackson, and the Dawsons own the property bordering the road. By letter dated August 30, 2007, the Dawsons requested a joint meeting of the town boards to consider their application.
¶ 3 The joint meeting took place on January 9, 2008. The town board for each municipality consists of five members. All five Jackson board members attended the meeting, but only three members of Cedarburg's board were present. During the public hearing portion of the meeting, several residents spoke. Four spoke in opposition to the application, three spoke in favor of it, and one letter in favor of the application was read into the record. The public portion of the hearing closed and the town board members proceeded to discuss the application and take a vote. Each town, on its own motion, voted separately. Jackson voted five-to-zero to vacate a portion of Wausaukee Road per the application and Cedarburg voted three-to-zero not to vacate. On January 14, Jackson recorded a highway order with the Washington County Register of Deeds to vacate that portion of Wausaukee Road. The Town of Cedarburg did not acknowledge that highway order.
¶ 4 On June 20, 2008, the Dawsons commenced a declaratory action seeking a determination that the portion of Wausaukee Road in question had been discontinued. The Dawsons then moved for summary judgment and Jackson supported the Dawsons' motion. Cedarburg argued that the Dawsons should have sought certiorari review under WIS. STAT. § 82.15. It further argued that the votes of both town boards at the January 9, 2008 joint hearing should not have been counted as a whole, with five in favor and three against; rather, the result was unanimous support from Jackson but unanimous rejection by Cedarburg and the application should have been denied. Cedarburg argued that because the Dawsons had originally approached Jackson separately for approval, their current position that the votes should be counted together was inconsistent. The circuit court determined that declaratory relief was an appropriate vehicle for the Dawsons to pursue relief and held that, under WIS. STAT. § 82.21(2), the votes at the joint hearing were properly counted in the aggregate. The circuit court did not address estoppel, presumably because the claim was not clearly presented or argued before the court.2 The court granted the Dawsons' motion for summary judgment and Cedarburg appeals.
¶ 5 Cedarburg renews the same three issues on appeal. First, it argues that the Dawsons should be precluded from seeking relief in the form of a declaratory judgment because certiorari review was prescribed by statute. Next, Cedarburg argues that the Dawsons should be estopped from asserting any position inconsistent with representations to the town boards prior to the joint hearing. Third, Cedarburg contends that the circuit court erred when it held that WIS. STAT. § 82.21(2) required the separate town board votes to be counted together.
¶ 6 These issues were resolved by summary judgment in the circuit court. Summary judgment is appropriate when no genuine issue of material fact exists and only questions of law remain. WIS. STAT. § 802.08(2). On appeal, we review a grant of summary judgment using a well-known methodology that need not be repeated here. See, e.g., Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶ ¶ 20-24, 241 Wis.2d 804, 623 N.W.2d 751. Our review of a summary judgment is de novo. Foremost Farms USA Co-op. v. Performance Process, Inc., 2006 WI App 246, ¶ 10, 297 Wis.2d 724, 726 N.W.2d 289.
¶ 7 We begin with Cedarburg's assertion that this action should have been brought under WIS. STAT. § 82.15, which states that 3 The Dawsons' failure to pursue certiorari review should, Cedarburg contends, "preclude this declaratory judgment action."
¶ 8 Certiorari review limits the issues to: (1) whether the board kept within its jurisdiction, (2) whether it acted according to law, (3) whether it acted arbitrarily or unreasonably, and (4) whether the evidence was such that the board might reasonably make the determination it made. See Cohn v. Town of Randall, 2001 WI App 176, ¶ 25, 247 Wis.2d 118, 633 N.W.2d 674. Cedarburg directs us to Master Disposal Inc. v. Village of Menomonee Falls, 60 Wis.2d 653, 657, 211 N.W.2d 477 (1973), for the proposition that a declaratory judgment action is not authorized where a more specific method of review is set forth by statute.
¶ 9 The Dawsons respond that the issue placed before the circuit court was outside the scope of certiorari review. They did not allege that the Cedarburg and Jackson town boards exceeded their jurisdiction, failed to act according to law, acted arbitrarily, or reached a determination unsupported by the evidence. Rather, the Dawsons accept the actions of the Cedarburg and Jackson town boards "as a given" and "accept those actions in their entirety." The Dawsons sought a declaration of the legal impact of the boards' votes on the application to discontinue part of Wausaukee Road. Certiorari review would not have reached the issue or offered a remedy.
¶ 10 We agree with the Dawsons that the question here is not one that could have been adequately addressed by certiorari review. WISCONSIN STAT. § 806.04(1), the uniform declaratory judgments act, provides that a court has the "power to declare rights, status, and other legal relations." The purpose of § 806.04 is remedial, intended to "settle and to afford relief from uncertainty and insecurity" and it is to be "liberally construed and administered." Sec. 806.04(12). Here, the Dawsons sought a determination of whether WIS. STAT. § 82.21(2) required the votes of both the Cedarburg board and the Jackson board to be counted together. This question is appropriately raised in a declaratory judgment action.
¶ 11 Cedarburg next argues that the Dawsons should be estopped from advocating any interpretation of WIS. STAT. § 82.21(2) that is inconsistent with their prior representations. The Dawsons respond that Cedarburg has waived this argument by failing to fully develop it in the circuit court. While we agree that Cedarburg never clearly pled or argued equitable estoppel, we choose to briefly address the argument. See Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140 (1980) (), superseded on other grounds by statute as stated in Wilson v. Waukesha County, 157 Wis.2d 790, 797, 460 N.W.2d 830 (Ct.App.1990).
¶ 12 "The elements of equitable estoppel are: (1) action or non-action, (2) on the part of one against whom estoppel is asserted, (3) which induces reasonable reliance thereon by the other, either in action or non-action, and (4) which is to his or her detriment." Milas v. Labor Ass'n of Wis., Inc., 214 Wis.2d 1, 11-12, 571 N.W.2d 656 (1997). "When the facts and reasonable inferences therefrom are not disputed, it is a question of law whether equitable estoppel has been established." Id. at 8, 571 N.W.2d 656.
¶ 13 Cedarburg argues that the Dawsons' prior words and actions induced it to send only three of its five town board members to the joint hearing. Referring to an application to discontinue Wausaukee Road filed two years prior, Cedarburg asserts that the Dawsons "had inappropriately tried to circumvent the statutory requirements under Sec. 82.21(2), Stats., by approaching Jackson's Plan Commission and Town Board to act alone on the application." By attempting this "end-run" of the statute, Cedarburg argues, the Dawsons must be estopped from now asserting that the two town boards act in concert.
¶ 14 Cedarburg also points to language in the Dawsons' August 30, 2007 correspondence to both towns, which advised that "each Board must come to a...
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