Howard v. Village of Elm Grove, 75-630

• Decision Date: 04 October 1977
• Docket Number: No. 75-630,75-630
• Citation: 80 Wis.2d 33,257 N.W.2d 850
• Parties: Shirley S. HOWARD, Plaintiff-Appellant, v. VILLAGE OF ELM GROVE, a Municipal Corporation, and Irene S. Moerwald, Austin H. Gauger, and Betty J. Gauger, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 850

257 N.W.2d 850

80 Wis.2d 33

Shirley S. HOWARD, Plaintiff-Appellant, v. VILLAGE OF ELM GROVE, a Municipal Corporation, and Irene S.

Moerwald, Austin H. Gauger, and Betty J. Gauger,

Defendants-Respondents.

No. 75-630.

Supreme Court of Wisconsin.

Submitted Sept. 6, 1977.

Decided Oct. 4, 1977.

This is a declaratory judgment action brought by a property owner, Shirley S. Howard, to seek the determination that an amendment to the Zoning Ordinance of the defendant, Village of Elm Grove (hereinafter "Village") unconstitutional, illegal, null and void. The following facts are alleged in the affidavits and other proofs of the parties in support of, and in opposition to, their respective motions for summary judgment.

On October 2, 1974, the defendants, Irene Moerwald, Austin Gauger and Betty Gauger (hereinafter Moerwald and Gauger) jointly submitted to the Village a plat of a proposed subdivision to be known as Hillcrest Highlands, which was composed of their adjoining vacant properties. This proposed subdivision was part of an area which had been designated "AA Residential District" in the original comprehensive Zoning Ordinance adopted by the Village in 1955. This is the Ordinance's most restrictive residential classification.

Hillcrest Highlands is located in the northwest portion of the village. It is bounded on the north by the village limits, on the east by substantially developed single family residence properties, on the south by a railway right-of-way and on the west by a multiple dwelling district. This multiple dwelling district, in the extreme northwest portion of the village, was established in the original Zoning Ordinance and designated in the original comprehensive zoning maps of 1956. Since then, it had been only slightly enlarged by rezoning.

Access to this northwest corner of the village has heretofore been possible only via Marilyn Drive, which at the time of the instant rezoning bisected the established multiple family district on a line running from the northwest to the southeast. The original zoning map, however, shows that an extension of this street was planned at that time to cross the Moerwald-Gauger properties and exit onto Hawthorne Drive, thus into the main portion of Elm Grove.

Moerwald and Gauger proposed to subdivide their properties into fifteen lots. They requested that three of these lots be rezoned from single family to multiple dwelling. These three lots are on the west end of the subdivision and abut the existing multiple family dwelling area.

On October 28, 1974, the plat and application for rezoning were unanimously approved by the Village Planning Commission, and on December 9, 1974, after hearing, the Village Board of Trustees approved the plat and application by a vote of four to three. This was not the first application made to the Village for the rezoning of these parcels. In April, 1968, Moerwald and Guager sought rezoning of four southwesterly parcels in the subdivision. Rezoning was granted as to the most southwesterly of the parcels, and was denied as to the three parcels which are the subject of this litigation. The property owners again sought the rezoning of the remaining three parcels in June, 1973, but were unsuccessful.

The Village and plaintiff moved for summary judgment. The trial court granted the village's motion. The trial court reaffirmed its decision on a subsequent motion for review. Plaintiff appeals from the judgment.

Additional facts will be stated in the opinion.

James G. Howard and Binder, Zirbel & Howard, Milwaukee, submitted briefs, for appellant.

H. J. Sanville, Elm Grove, submitted brief, for respondents.

HANLEY, Justice.

The sole issue to be determined on this appeal is whether, by reason of disputed facts or inconsistent inferences raised in the affidavits of the parties, the plaintiff was entitled to a trial on the merits.

It is well established that summary judgment is a drastic remedy which should be used only when there are no substantial issues of fact to be tried and when there are no permissible inferences from undisputed facts that would permit a different result. Federal Deposit Insurance Corp. v. First Mortgage Investors, 76 Wis.2d 151, 153-55, 250 N.W.2d 362 (1977). A precise methodology to be used by trial courts in determining whether a case is appropriately disposed of through summary judgment was set forth in Marshall v. Miles, 54 Wis.2d 155, 160-61, 194 N.W.2d 630, 633 (1972):

"The summary-judgment procedure initially requires an examination of the pleadings to determine whether a cause of action has been stated and whether material issues of fact are presented. (Case cited) However, the allegations of the pleadings may not be considered as evidence or other proof on a disposition of the motion. (Cases cited) Assuming a cause of action and the existence of factual issues, an examination is then made of the moving party's (defendant's) affidavits and other proof to determine whether a prima facie defense has been established. (Case cited) If the moving party has made a prima facie case for summary judgment, an examination is then made of the opposing party's (plaintiff's) affidavit and other proof to determine whether there exists disputed material facts, or undisputed material facts from which reasonable alternative inferences may be drawn, sufficient to entitle the opposing party to a trial. (Case cited) The summary judgment procedure is not a trial on affidavits. (Case cited)"

This same methodology is used by this court to determine whether the trial court abused its discretion in either granting or denying the motion for summary judgment. Ricchio v. Oberst, 76 Wis.2d 545, 551, 251 N.W.2d 781 (1977).

The Village's motion for summary judgment was supported by the affidavits of the Village Clerk and the affidavit of the Village Engineer and Public Works Superintendent. The affidavit of the Village Clerk set forth evidentiary facts which related to the procedure followed by the Village's Planning Commission and Trustees in approving the petition for rezoning, and also set forth the following facts relating to the physical characteristics of the proposed subdivision and surrounding area:

"6. That . . . the three parcels proposed to be rezoned in such subdivision lie immediately adjacent to Brook Grove Subdivision in the Village of Elm Grove, the entire area of which is zoned Multiple Dwelling District. . . .

"7. That . . . the only access to Marilyn Drive in such area is by way of North Avenue in the City of Brookfield; that by reason thereof, the Police and Fire Department must use this circuitous route to provide their services to this area; that at present, snow plowing service to such area is provided by the City of Brookfield under contract with the Village of Elm Grove."

Attached to this affidavit was a copy of the Zoning Ordinance Amendment here in question, in which the Village Board set forth the following findings as the basis of the rezoning:

"1. The proposed rezoning represents a responsible termination of the Multiple Dwelling Zoning in that particular area and no further change in zoning from this present approval should be granted in the future.

"2. The platting of this subdivision and its general layout is consistent with the official map of the Village as originally designed for the extension of Marilyn Drive to Woodview Subdivision to the east and the exit of this roadway onto Hawthorne Drive and the layout of this subdivision, including the proposed rezoning, is further consistent with the original concept of the development of this total area.

"3. This rezoning and platting represents a final rezoning and platting of the entire area lying between the subdivision to the west, all of which have been developed as multiple dwelling area, and the subdivision to the east, which was platted and developed as a Single Family Unit Residential area.

"4. The matter of drainage has been examined, both as to its character within the proposed subdivision and as to its effect upon adjoining areas, and that study shows that this drainage situation within the proposed subdivision is not a deterrent to the approval of its platting or its eventual development set out in the request for approval of the subdivision plat."

The amendment, which was to be effective immediately, set as conditions subsequent the completion of all roads and all...