Fran Ingebritson v. Zoning Board of Appeals of City of Madison, George Carran, Zoning Administrator of City of Madison, Linda Grubb, Administrative Neighborhood Preservation Supervisor of City of Madison, City of Madison, s. 95-1861
| Decision Date | 20 March 1997 |
| Docket Number | Nos. 95-1861,96-0911,s. 95-1861 |
| Citation | 209 Wis.2d 599,568 N.W.2d 37 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Fran INGEBRITSON, Plaintiff-Respondent-Cross Appellant, v. THE ZONING BOARD OF APPEALS OF THE CITY OF MADISON, Wisconsin, George Carran, Zoning Administrator of the City of Madison, Linda Grubb, Administrative Neighborhood Preservation Supervisor of the City of Madison and the City of Madison, Defendants-Appellants-Cross Respondents, Mental Health Center of Dane County, Inc., Intervenor-Defendant-Appellant-Cross Respondent. Fran INGEBRITSON, Plaintiff-Respondent, v. THE ZONING BOARD OF APPEALS OF THE CITY OF MADISON, Wisconsin, George Carran, Zoning Administrator of the City of Madison, Linda Grubb, Administrative Neighborhood Preservation Supervisor of the City of Madison and the City of Madison, Defendants-Appellant, Mental Health Center of Dane County, Inc., Intervenor-Defendant-Appellant. |
| Court | Wisconsin Court of Appeals |
APPEAL from a judgment of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge. Affirmed in part; reversed in part and cause remanded with directions.
Before VERGERONT, ROGGENSACK and DEININGER, JJ.
This appeal concerns the validity of a City of Madison ordinance rezoning property located at 802 East Gorham and the proper interpretation of that ordinance and a related deed restriction. The property is now owned by the Mental Health Center of Dane County (MHCDC). The building on the property is an historic landmark. Fran Ingebritson, a resident in the neighborhood, initiated this action, which challenges the validity of the rezoning of the property from General Residential-5 (R5) to Office Residential (OR) in 1986 and various determinations of the City of Madison zoning administrator and Zoning Board of Appeals (ZBA) relating to the Yahara House, the facility that MHCDC operates on the property.
On cross-motions for summary judgment, the trial court ruled that the rezoning was illegal spot zoning 1 but that the deed restriction permitted the operation of Yahara House. The court also concluded that neither the City of Madison zoning administrator nor the ZBA had the authority to interpret the deed restriction. Although the court decided that the ZBA acted arbitrarily and capriciously when it denied Ingebritson's request to reopen an earlier decision of the ZBA--that the operation of the Yahara House was permitted in the OR classification--the court also decided that this issue was moot in view of its ruling of illegal spot zoning.
On appeal, the City and MHCDC contend that: (1) Ingebritson lacks standing; (2) the doctrine of laches bars Ingebritson's challenge to the 1986 rezoning; (3) the 1986 rezoning was not illegal spot zoning; (4) the ZBA did not exceed its authority in interpreting the deed restriction and did properly interpret it; and (5) the ZBA's denial of Ingebritson's request to reopen its July 22, 1993 decision was not arbitrary and capricious. Ingebritson cross-appeals, contending that the trial court erred (1) in its interpretation of the deed restriction, and (2) in concluding that the issues raised in her petition for review by certiorari were moot.
We conclude that Ingebritson has standing to challenge the 1986 rezoning, but that the proper application of the doctrine of laches bars a remedy for that claim. We conclude she also has standing to challenge the ZBA's decision not to reconsider its July 22, 1993 determination that Yahara House is an office within the meaning of the OR classification and its decision that the deed restriction permits accessory uses for professional and business offices as provided in the OR classification. We conclude the ZBA did not act arbitrarily and capriciously in denying Ingebritson's request to reconsider its July 22, 1993 determination. Finally, we conclude the ZBA had authority to review the zoning officials' interpretation of the deed restriction in this context and that its interpretation should be affirmed. 2
The building at 802 East Gorham Street was converted from a residence to an office in 1943 for the headquarters for the Seventh Day Adventists. In 1976, the new owners received approval from the zoning administrator to convert the building into an attorney's office with the understanding that the building, as a professional office, was a non-conforming use under the then-existing R5 zoning classification and could not be expanded.
In 1985, the same owner applied for an amendment to the zoning ordinance to change the zoning for the property from R5 to OR. At the time, a prospective buyer of the property was an advertising firm. Zoning Administrator George Carran reviewed the rezoning application and concluded that the advertising firm would be considered a "business office" and rezoning would be necessary for it to occupy the building. Carran recommended approval of the rezoning application.
The application was referred to the City Planning Department. 3 The planning department's report disagreed with Carran's conclusion that rezoning was necessary to the operation of a business office, because a business office was a conditional use in a landmark building located in a R5 residential district. See MADISON, WIS., ZONING CODE §§ 28.08(6)(c)1 and 28.08(5)(c)4.b (1996). The report recommended approval of a conditional use, but added that if the plan commission chose to support the rezoning, a deed restriction was advisable "to retain the residential character and to avoid the O.R. side effects." After being notified that rezoning was not necessary, the owner agreed to withdraw the rezoning request and to pursue the conditional use process.
On May 5, 1986, the owner submitted a second petition to rezone the property to OR, but this time another advertising firm, the Hiebing Group, was the prospective purchaser. The planning department repeated its conclusion that rezoning would not be necessary to allow a business office to operate on the property. Again, the planning department recommended a conditional use procedure rather than rezoning. After a public hearing, the plan commission voted to support the rezoning to OR "subject to a deed restriction limiting the use to business and professional offices and single-family homes." On June 17, 1986, the common council enacted an ordinance to rezone the property from R5 to OR. Although the ordinance was adopted subject to the deed restriction, the deed restriction was not referred to in the ordinance. 4 After the ordinance was enacted, the Hiebing Group purchased the property and recorded the deed, but without the deed restriction. This occurred through oversight by city personnel.
In the spring of 1993, MHCDC began to explore the property at 802 East Gorham Street as a site for the Yahara House, which was then operating in another location in Madison. The Yahara House is described by its executive director as a psychiatric rehabilitation facility that provides job training and placement services for persons with long-term mental illnesses, who are called "members." The functions that take place at the Yahara House include: administration of HUD apartments located elsewhere; administration of a resale store located elsewhere and at which members work; and administration of job placement in the community. Psychiatric and medical services are provided to members at the Yahara House and there is a cafeteria for members. Members receive skill training at the Yahara House by helping perform the office and cafeteria tasks.
On or about May 17, 1993, MHCDC entered into a purchase agreement with the Hiebing Group for the purchase of the property. Before MHCDC signed the purchase agreement, Carran and Thomas Akagi, of the planning department, toured the then-current location of Yahara House at the request of MHCDC. Carran indicated that "the operations were best described as offices that provide vocational and job placement in the community," which would be a permitted use in the OR zoning district. In response to architect Arlan Kay's request for written confirmation that MHCDC could operate the Yahara House on the property, Carran sent Kay a letter on June 1, 1993, stating:
Linda Grubb, Neighborhood Preservation Supervisor of the planning department, sent a more detailed letter to MHCDC on July 22, 1993, confirming that the Yahara House came within the OR classification. Grubb stated that the OR classification lists as permitted uses "Offices, business and professional, including but not limited to accessory uses such as restaurants, gift shops, drugstores, valet shops, beauty shops, and barbershops," MADISON, WIS., ZONING CODE § 28.08(8)(b)3, and that this zoning category was reflective of the primary functions of Yahara House. Grubb described the Yahara House as "a mix of office, including training functions, cafeteria and a small percentage of care mostly in an area similar to a nurse's station." She noted that the department had previously determined that Yahara House was an office when it moved into its present location.
Fran Ingebritson is a neighborhood resident whose residence is located 250 feet from the property. She has lived there since 1980 and purchased the property in 1984. Ingebritson has been involved in zoning issues regarding the property since the first petition in 1985.
On June 3, 1993, Ingebritson filed an appeal with the ZBA challenging Carran's decision, asserting that Yahara House functioned as a clubhouse and therefore did not meet the conditions for the OR zoning classification. The ZBA considered Ingebritson's appeal on July 22, 1993. Ingebritson and other residents of the...
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