Kmiec v. Town of Spider Lake

• Decision Date: 30 October 1973
• Docket Number: No. 205,205
• Parties: John S. KMIEC et al., Respondents, v. TOWN OF SPIDER LAKE, Appellant, Sawyer County, Defendant.
• Court: Wisconsin Supreme Court

Page 471

211 N.W.2d 471

60 Wis.2d 640

John S. KMIEC et al., Respondents, v. TOWN OF SPIDER LAKE, Appellant, Sawyer County, Defendant.

No. 205.

Supreme Court of Wisconsin.

Oct. 30, 1973.

Thomas J. Gallagher, Park Falls, Powell, Gee & Hendricks, Superior, of counsel, for appellant.

Arthur DeBardeleben, Park Falls, Joseph M. Recka, Park Falls, of counsel, for respondents.

CONNOR T. HANSEN, Justice.

The plaintiffs purchased 296 acres of land in the Town of Spider Lake on January 29, 1970. The land had some frontage on Clear Lake. They had previously toured the area and decided this 296--acre parcel of land was ideal upon which to make their permanent residence and begin a residential development which would encompass a golf course and clubhouse. Prior to purchasing the property, Mr. Kmiec spoke with the town chairman, William Bostrand, to determine whether the ordinances of the Town of Spider Lake would permit his proposed development. Bostrand told him that the town ordinance would not prohibit the proposed development.

The property was purchased for $50,000. On September 14, 1970, a permit was obtained from the town clerk for the reconstruction of the old farm house, which would serve as their permanent residence on the lake, and for the construction of the clubhouse. Upon receipt of these permits, the plaintiffs began to work on the proposed development. In addition to remodeling the old farm house, they excavated and graded fairways for the proposed golf course, began building perimeter roadways, and excavated and performed transit readings for the clubhouse. Plans were prepared for the residences, clubhouse, and other facilities. A well was installed for the clubhouse and a layout was completed for a sprinkling system designed for the golf course. Heavy equipment, including a caterpillar, road grader, dump truck and tree transplanter, was purchased for the prject.

Meanwhile, the Northwestern Regional Planning and Development Commission, of which Sawyer County is a member, was completely previously requested zoning studies of the area. Michael F. Morgan was in charge of the studies and program to develop a zoning ordinance for Sawyer County. The resources used in formulating the ordinance included a structure use map which classified the various structures which existed in the area as of 1968; an air photo of the western portion of Spider Lake township, apparently taken on May 30, 1966; an existing land use map indicating forest areas, swamp areas, etc.; and a land ownership map. Morgan did not inspect the property in question to determine its nature or use. He determined that the property was agricultural in nature and should be zoned A--1 on the basis of these photos and maps.

The proposed ordinance was submitted to the county zoning committee and they changed it to suit their needs.

On March 1, 1971, Sawyer County adopted the proposed zoning ordinance which became effective on March 26, 1971. The plaintiffs' property, except for their personal residence, was zoned A--1, agricultural district, under this ordinance. On April 10, 1971, the Town of Spider Lake adopted this zoning ordinance with certain modifications and also classified plaintiffs' property A--1.

On September 23, 1971, plaintiffs were notified by the Town of Spider Lake to cease and desist from any further construction, improvement or use of the land for a clubhouse and golf course.

ISSUES.

The issues presented in this appeal are:

1. Whether plaintiffs should have been required to exhaust their administrative remedies before commencing this declaratory judgment action?

2. Whether the classification of plaintiffs' property as A--1, agricultural district, has no logical basis and is utterly unreasonable, as determined by the trial court?

EXHAUSTION OF ADMINISTRATIVE REMEDIES.

After the plaintiffs discovered the classification of their property under the new zoning ordinance, they petitioned the town board to change the classification of their property from A--1 to RR--1, residential-recreational. A hearing was held on July 6, 1971, at which approximately 150 townspeople were present. These townspeople were opposed to Kmiecs' petition for reclassification, and it was denied. Kmiec gave a handwritten notice to Stuart Heinemann, who was acting in the capacity of the zoning chairman, notifying him that he, Kmiec, wished to appeal their denial of his petition. Kmiec was subsequently notified by retained counsel that his notice did not conform to the statutory requirements of sec. 62.23(7)(e), Stats., and that the town refused to take further action with regard to it. Plaintiffs then commenced this action.

Kmiec also testified, at trial, that he attended a meeting of the county board of supervisors of Sawyer County on December 21, 1971, and requested a change in the classification of his property. This request was rejected.

In considering the issue of exhaustion of remedies, we would point out that there is a well-defined distinction in applying this judicial policy to the statutory administrative remedies in zoning cases. Such questions as the absence of constitutional due process in the manner in which the administrative agencies conduct proceedings, and which ordinances to apply, come within the scope of the doctrine of exhaustion of remedies. Issues such as these, though some of them may be constitutional in nature, such as due process, can properly be reviewed by a trial court in statutory certiorari proceedings. However, a challenge to the constitutional validity of a zoning ordinance presents a question of law. Such a challenge may properly be made by commencing an action for declaratory judgment and the doctrine of exhaustion of remedies is not applicable. Compare: Master Disposal, Inc. v. Village of Menomonee Falls (1973), Wis., 211 N.W.2d 477, decided in this assignment of cases.

We would observe that many of the cases cited by both parties arise out of declaratory judgment proceedings challenging the validity of various zoning ordinances. However, in most of them the issue of exhaustion of remedies is not raised. ¹

State ex rel. Tingley v. Gurda (1932), 209 Wis. 63, 243 N.W. 317, although a mandamus proceeding recognized that administrative zoning boards were not intended to pass upon legal and constitutional questions relating to the validity of a zoning ordinance, at page 68, 243 N.W. at page 319 it was stated:

'. . . It has been held that zoning boards of adjustment are not created as appellate bodies, and that legal or constitutional questions involved in zoning requirements are not a subject matter for the determination of such boards, but must be presented for consideration to the proper legal forum. It seems that, generally, their powers of review are limited to practical difficulties, or unnecessary hardship, in the way of carrying out the strict letter of the law. . . .'

The zoning ordinance of the Town of Spider Lake stands as a legislative act of the Town. The review boards are administrative agencies which have been created by the same legislative body. Such administrative agencies are clothed with no right to repeal or declare unconstitutional zoning ordinances enacted by the legislative body from which it derives its existence. Therefore, the plaintiffs' remedy in seeking review by such an administrative agency under ordinary circumstances would afford the plaintiffs no relief because it is the plaintiffs' contention that the zoning ordinance relied upon by the defendant is unconstitutional as applied to his property.

This court recognized in Jefferson County v. Timmel (1952), 261 Wis. 39, 64, 51 N.W.2d 518, 530, that administrative remedies '. . . must be exhausted before a party can resort to the courts for other relief except in cases where the validity of the ordinance itself is attacked.' It is also generally recognized:

'An owner of land restricted or adversely affected in use by a zoning ordinance may bring proceedings for a declaratory judgment as to the validity or constitutionality of the ordinance. One who claims that a zoning restriction is in excess of the jurisdictional authority of the zoning power need not stand by and await prosecution or injunctive proceedings by the municipality; he may bring an action for declaratory judgment to test the legality of the zoning restriction. . . .' 22 Am.Jur.2d, Declaratory Judgments, pp. 877, 878, sec. 29.

It is also recognized in 8A McQuillin, Municipal Corporations (1965 Rev. 3d ed.), p. 324, sec. 25.289:

'A proceeding for a declaratory judgment that a zoning ordinance is arbitrary, unreasonable and discriminatory, and hence unconstitutional, may be instituted in some instances without the necessity of exhausting all other remedies before attacking the ordinance. . . .'

It is our conclusion that in this case an appeal to the administrative agencies would afford the plaintiffs no adequate relief; therefore, their commencement of an action for declaratory judgment was proper.

CLASSIFICATION.

It is undisputed that this property had not been utilized as farmland for at least 11 years before it was zoned A--1, agricultural district.

Arthur Best, a qualified expert appraiser of land in the Sawyer County area, testified that it would require $150 to $200 an acre to windrow and destroy the debris on the land in order to put it in farming condition again. After this expenditure the land would be worth $75 per acre as farmland.

It was recognized in Cushman v. Racine, supra, 39 Wis.2d page 307, 159 N.W.2d 67;

'The most frequent instance of judicial interference with existing ordinances occurs in cases in which the court is able to conclude that the property in question is unfit for the use to which the ordinance restricts it. See State ex rel. Schroedel v. Pagels (1950), 257 Wis. 376, 43 N.W.2d 349; State ex rel. Scandrett v. Nelson (1942), 240 Wis. 438, 3 N.W.2d 765; Geisenfeld v. Village of Shorewood (1939), 232 Wis. 410, 287 N.W. 683; Rowland v....