Master Disposal Inc. v. Village of Menomonee Falls, 178

• Citation: 211 N.W.2d 477,60 Wis.2d 653
• Decision Date: 30 October 1973
• Docket Number: No. 178,178
• Parties: MASTER DISPOSAL, INC., Appellant, v. VILLAGE OF MENOMONEE FALLS et al., Respondents.
• Court: United States State Supreme Court of Wisconsin

Page 477

211 N.W.2d 477

60 Wis.2d 653

MASTER DISPOSAL, INC., Appellant, v. VILLAGE OF MENOMONEE FALLS et al., Respondents.

No. 178.

Supreme Court of Wisconsin.

Oct. 30, 1973.

McLario, Bernoski & Koener, Menomonee Falls, Ronald George Bernoski, Menomonee Falls, of counsel, for appellant.

Puls & Puls, Milwaukee, Norman J. Baker, Milwaukee, of counsel, for respondents.

BEILFUSS, Justice.

While not raised in the briefs, at oral argument this court posed the question of whether the trial court and, in turn, this court, had jurisdiction because the plaintiff sought declaratory relief rather than a writ of certiorari as required by sec. 62.23(7)(e), Stats., and this court's opinion in Ferch v. Schroedel (1942), 241 Wis. 457, 6 N.W.2d 176. Although invited to do so, neither party has responded to this inquiry.

In Ferch v. Schroedel, supra, at pp. 460, 461, 6 N.W.2d at p. 178, we stated:

'Sec. 62.23(7)(e) 1, Stats., relating to zoning, provides for a board of appeals as follows:

"1. The council which enacts zoning regulations pursuant to this section shall by ordinance provide for the appointment of a board of appeals, and shall provide in such regulations that said board of appeals may, in appropriate cases and subject to approximate (appropriate) conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained.'

'Subdivision 10 of sec. 62.23(7)(e), States., provides:

"Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within thirty days after the filing of the decision in the office of the board of appeals.'

'Subd. 11 of sec. 62.23(7)(e), Stats., provides:

"Upon the presentation of such petition the court may allow a writ of certiorari directed to the board of appeals in order to review such decision of the board of appeals, and shall prescribe therein the time within which a return thereto must be made and served upon the relator's attorney, which shall not be less than ten days and may be extended by the court. The allowance of the writ shall not stay proceedings upon the decision appealed from, but the court may, on application, on notice to the board of appeals, and on due cause shown, grant a restraining order.'

'In State ex rel. Martin v. Juneau, 238 Wis. 564, 568, 300 N.W. 187, 189, the court said:

"This Court has repeatedly held that where a specified method of review is prescribed by an act creating a new right or conferring a new power, the method so prescribed is exclusive and if review is sought that method must be pursued.' Citing State ex rel. Attorney General v. Fasekas, 223 Wis. 356, 362, 269 N.W. 700; Corstvet v. Bank of Deerfield, 220 Wis. 209, 263 N.W. 687.

'Plaintiff having failed to follow the required statutory procedure, the court below had no jurisdiction in the instant case, and should have dismissed the action on that ground. Instead, the court, after a full trial of the action, dismissed same upon the merits. Since judgment of dismissal has been entered, the court will affirm the judgment on the grounds indicated.'

Although the above ruling applied to land located and zoned in a city, sec. 61.35, Stats., states that:

'The provisions of section 62.23 shall apply to villages, and the powers and duties conferred and imposed by said section upon mayors, councils and specified city officials are hereby conferred upon presidents, village boards, and village officials performing duties similar to the duties of such specified city officials, respectively. . . .'

The respondent-governmental unit in this case is the Village of Menomonee Falls and therefore Ferch v. Schroedel, supra, applies.

Because the Declaratory Judgment Act, sec. 269.56, Stats., was in existence when the legislature passed sec. 62.23(7)(e), and when the court decided Ferch v. Schroedel, supra, a declaratory judgment action is not an exception; and that appeal by certiorari is the exclusive remedy to challenge the action of the plan commission and the zoning board of appeals. ¹

In Lakeshore Development Corp. v. Plan Comm. (1961), 12 Wis.2d 560, 565, 566, 107 N.W.2d 590, 592, the court discussed the scope and purpose of the writ of certiorari and its particular applicability to zoning matters:

'The writ of certiorari at common law was limited to scope and a motion to quash, either before or after the return to the writ was made, usually raised only questions of jurisdiction or excess power set forth as errors in the petition although other errors might appear in the return. Ferris, Extraordinary Legal Remedies, p. 204, sec. 178. The return was taken as conclusive if responsive to the petition and could not be impeached by collateral affidavits....