Goldberg v. City of Milwaukee Bd. of Zoning Appeals

• Decision Date: 10 October 1983
• Docket Number: No. 82-2366,82-2366
• Citation: 340 N.W.2d 558,115 Wis. 2d 517
• Parties: Sidney GOLDBERG, Relator-Appellant, v. The CITY OF MILWAUKEE BOARD OF ZONING APPEALS, Defendant-Respondent.
• Court: Wisconsin Court of Appeals

Page 558

340 N.W.2d 558

115 Wis.2d 517

Sidney GOLDBERG, Relator-Appellant, v.The CITY OF MILWAUKEE BOARD OF ZONING APPEALS, Defendant-Respondent.

No. 82-2366.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 16, 1983.

Opinion Released Oct. 10, 1983.

Opinion Filed Oct. 10, 1983.

Deutch, Hansher & Grodsky, S.C., Milwaukee, with Harry A. Stein and Alan H. Deutch, Milwaukee, of counsel, for relator-appellant.

James B. Brennan, City Atty., Milwaukee, with Beverly A. Temple, Asst. City Atty., Milwaukee, of counsel, for defendant-respondent.

Before DECKER, MOSER and BROWN, JJ.

DECKER, Judge.

Sidney Goldberg(Goldberg) appeals from an order denying his application to the Milwaukee Board of Zoning Appeals(board) for a permanent variance.He contends that the board acted improperly in revising, without giving notice or stating reasons, its original determination, and further erred in creating a variance personal to the sellers, the Piepers.We agree that the revision was in excess of the board's power.We hold that the revised determination was void and we therefore reverse the order of the circuit court and remand to the trial court directing entry of judgment in accordance with this opinion.

The property in question, located at 2862 N. Prospect Avenue, had been converted from a four-family to a six-family dwelling sometime prior to the 1970's.

In October, 1974, Roland and Helen Pieper submitted an offer to purchase and filed an application for an occupancy certificate for a six-family apartment building.The application was denied by the building inspector on October 28, 1974, because the lot was too small.On November 5, 1974, the Piepers filed a notice of appeal to the board.A hearing was held on November 21, 1974.The board issued a decision dated December 2, 1974, granting a variance for a permit to occupy the building as a six-family dwelling.On December 11, the Piepers, in accord with the terms of the variance, recorded an affidavit with the register of deeds reflecting the grant of the variance.On December 13, 1974, however, the board revised its decision, apparently without a further hearing and without prior notice to the Piepers, and added the following condition: "That this variance is granted to Roland and Helen Pieper personally."It is undisputed on appeal that the Piepers did not receive notice of this change until after they had completed the purchase of the building.When the building purchase was completed, the Piepers had notice of only the original variance and had complied with its affidavit provision.They did not appeal the revised determination after they learned of it.

On July 5, 1979, Goldberg submitted an offer to purchase the property from Helen Pieper, now a widow.That offer, which was apparently accepted, provided for transfer by land contract, which contained various options in the event a six-family variance was not accepted.On July 17, 1980, an application for a six-family occupancy certificate was made by Shafton Properties.On July 24, 1980, the district inspector noted that, because the variance was personal to the Piepers, the new owners must apply for a hearing before the board.

On August 19, 1980, Goldberg filed a notice of appeal requesting a permanent variance for six-family use or, in the alternative, for a six-family owner-occupied variance.He alleged the "same reasons and grounds as was previously requested" by the Piepers.

After a hearing, the board entered an order denying the variance.Goldberg brought a writ of certiorari to have the circuit court review the board's decision.The court affirmed the board's decision.Goldberg appeals.

Although Goldberg raises a variety of issues on appeal, we need only address whether the act of the board was arbitrary and whether variances run with the land.

This case is before the trial court and now this court on certiorari, and thus, review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question.Snyder v. Waukesha County Zoning Board of Adjustment, 74 Wis.2d 468, 475, 247 N.W.2d 98, 102(1976).

The trial court determined that the board's action was not arbitrary because:

Mr. Goldberg is not asking for the same treatment as was given the Piepers.Whereas they were granted a variance limited to themselves personally, while they occupied the premises--a condition which allowed the Board to retain future control if changes in the neighborhood required strict conformity with the ordinance--Mr.Goldberg is seeking a permanent variance, not personal as to him.

While this may be an accurate statement if one compares Goldberg's application with the December 13, 1974 variance, it is not accurate if the original variance of December 2, 1974 is used.The real issue before us, then, is the validity of the revised variance of December 13, 1974.

Section 62.23(7)(e), Stats., governs zoning boards of appeals.Subsection 6 states:

6.The board of appeals shall fix a reasonable time for the hearing of the appeal or other matter referred to it, and give public notice thereof, as well as due notice to the parties in interest, and decide the same within a reasonable time.Upon the hearing any party may appear in person or by agent or by attorney.

While notice was given and a hearing was had concerning the original variance granted, there is nothing in the record to indicate that the revised variance resulted from an additional hearing, nor is there any indication that notice was given.

We are unaware of any Wisconsin authority to support or reject the board's revision.Although there is some split of authority on a board's power to reopen or reconsider, ¹ our research persuades us that the better rule is that a zoning board acts in excess of its power in reopening a proceeding which has once been terminated.SeePeople ex rel. Swedish Hospital v. Leo, 120 Misc. 355, 198 N.Y.S. 397, 399(1923);see alsoMorton v. Mayor and Council of Clark, 102 N.J.Super. 84, 245 A.2d 377, 382-84(1968)[and cases cited therein].Possible exceptions to this rule, such as public necessity or other good cause, are not evident from the record and are, therefore, inapplicable here.SeeNuckles v. Allen, 250 S.C. 123, 156 S.E.2d 633, 637(1967).

We are persuaded and guided by a statement by the Superior Court of New Jersey in Morton, supra, 245 A.2d at 384:

[V]iewing the board of appeals as a quasi-judicial tribunal, the general rule is that such a board is not vested with the power to reopen and rehear a proceeding which has once been terminated, at least in the absence of mistake in the prior proceedings.Otherwise there would be no finality to the proceeding; the result would be subject to change at the whim of members, or due to influence exerted upon them or other undesirable elements tending to uncertainty and impermanence.

[Emphasis in original.]Citing Miles v. McKinney, 174 Md. 551, 199 A. 540, 546(App.1938);see also3 R. Anderson, American Law of Zoning§ 16.50(1968).

We draw further guidance from State ex rel. Cities Service Oil Co. v. Board of Appeals, 21 Wis.2d 516, 124 N.W.2d 809(1963).Although the issue there concerned alleged defects in notice of board hearings concerning building permits, the supreme court distinguished building permit hearings from variance hearings and discussed the significance of variances generally:

We consider the situation with respect to a claimed defect in the published notice of a hearing to consider a variance to be entirely different than that of a hearing to consider an appeal by a nearby property owner to revoke a building permit which he contends violated a zoning ordinance.In the former situation adequate public notice is most essential in order to give affected property owners a chance to protest against the proposed variance.If the variance is granted and the published notice is...