Merkel v. Village of Germantown, 97-3347
| Decision Date | 08 April 1998 |
| Docket Number | No. 97-3347,97-3347 |
| Citation | 218 Wis.2d 572,581 N.W.2d 552 |
| Parties | James MERKEL and Carlton Martin, Plaintiffs-Appellants, v. VILLAGE OF GERMANTOWN and Village of Germantown Board of Trustees, Defendants-Respondents. d |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Roger C. Pyzyk, West Allis.
On behalf of the defendants-respondents, the cause was submitted on the brief of Daniel L. Sargeant of Schloemer, Alderson, Spella & Muehlbauer, S.C. of West Bend.
Before SNYDER, P.J., and BROWN and ANDERSON, JJ.
James Merkel and Carlton Martin appeal from an order dismissing their petition for a writ of certiorari and reversing and remanding the matter back to the Village of Germantown Zoning Board (hereinafter Board). The trial court did not consider the issue raised in the certiorari petition--whether the land area calculations as represented by the seven protest petitions complied with the 20% requirement of § 62.23(7)(d)2m, STATS. Instead, the court rescinded the vote on rezoning and ordered the Board to validate five additional petitions, which by advice of counsel were held invalid by the Board; to recalculate the area represented by all twelve petitions protesting Merkel's requested rezoning; and to conduct further proceedings following the recalculation. Because certiorari exists for a limited purpose--to test the validity of judicial or quasi-judicial determinations--and because the certiorari court committed error by considering the Board's answer and not limiting review to the issue presented in the certiorari petition, we reverse the trial court's order.
Martin is the owner and Merkel is the developer of a parcel of land in the Village of Germantown which is zoned A-2 Agricultural. In March 1996, Martin and Merkel (hereinafter Merkel) applied to the Village to rezone the parcel from A-2 Agricultural to EH Elderly Housing District, with the intent of developing an elderly housing complex. 1 The application went before the Village Plan Commission in March and the Commission rejected the requested zoning by a vote of six to one. Merkel sought reconsideration by the Commission, but it declined to change its earlier decision.
Merkel then requested a public hearing before the Board which was scheduled for November 1996. Prior to the hearing, property owners adjacent to the parcel filed twelve protest petitions pursuant to § 62.23(7)(d)2m, STATS. 2 The petitions were submitted to the Village attorney for review. The attorney determined that five petitions, which were signed by only one owner, were not valid and that the remaining seven petitions, signed by two owners, were valid and that they constituted 21.96% of the total area requiring a three-fourths vote of the Board.
At the hearing, Merkel questioned the validity of the Board's percentage calculations for the protest petitions and disputed whether the valid petitions met the statutory 20% minimum requiring a three-fourths vote as opposed to a simple majority vote. The Board postponed action until January 20, 1997. At the January hearing, after taking comments from Merkel and from others, the Board voted five to four in favor of granting the rezoning request, but it was ruled to have failed because valid protest petitions by neighboring property owners had been presented, thus requiring a three-fourths vote, not a simple majority vote, to pass the rezoning request.
Consequently, Merkel commenced this action by writ of certiorari. The Board filed an answer denying the essential allegations in the complaint and it affirmatively alleged that all of the protest petitions constituted a valid protest requiring a three-fourths vote by the Board, or in the alternative, if a valid protest petition was not filed, the Board proceeded under a mistake of material fact such that its vote should be vacated and the matter returned to the Board for further proceedings. The trial court concluded that the Board's decision was erroneous because it failed to include the five protest petitions which the court held to be valid. Accordingly, the court rescinded the Board's vote, and remanded the matter back to the Board to recalculate the area represented by the protest petitions and for further proceedings following such recalculation. Merkel appeals.
On appeal, Merkel argues that the trial court was without authority to review the validity of the five protest petitions because no appeal was ever taken from the determination that those five petitions were invalid and because Merkel did not raise that as an issue in the certiorari petition. Rather, Merkel insists that the only issue on certiorari is whether the calculations made by the Village attorney of the land area involving the seven petitions actually met the statutory requirement of § 62.23(7)(d)2m, STATS., thus requiring a three-fourths vote of the Board to pass the rezoning request.
We agree. A writ of certiorari exists for a limited purpose--to test the validity of a judicial or quasi-judicial determination. See Gaster v. State ex rel. Whitcher, 117 Wis. 668, 671-72, 94 N.W. 787, 788 (1903). The writ " 'bear[s] no resemblance to the usual processes of courts, by which controversies between parties are settled by judicial tribunals .' " Coleman v. Percy, 86 Wis.2d 336, 341, 272 N.W.2d 118, 121 (Ct.App.1978) (quoted source omitted), aff'd, 96 Wis.2d 578, 292 N.W.2d 615 (1980). There is no "answer" or other opposing pleading in certiorari proceedings: "[T]he return to the writ is merely a certification of the record of the proceedings sought to be reviewed by the petition [and] [u]nlike an answer to a complaint it does not consist of denials and affirmative defenses." Consolidated Apparel Co. v. Common Council, 14 Wis.2d 31, 36-37, 109 N.W.2d 486, 489 (1961) (citation omitted). " 'The petition or affidavit upon which the writ issues serves the purpose of an assignment of errors, and no irregularities will be considered except such as are pointed out therein, although they are apparent of record.' " Tourville v. S.D. Seavey Co., 124 Wis. 56, 58, 102 N.W. 352, 353 (1905) (quoted source omitted).
The question for the certiorari court is "whether the facts set forth in the...
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