Miller v. Zoning Bd. of Appeals of the Vill. of Lyndon Station & Vill. Bd. of Lyndon Station

• Docket Number: 2021AP1764
• Decision Date: 06 June 2023
• Parties: Thomas G. Miller,Plaintiff-Respondent-Petitioner, v. Zoning Board of Appeals of the Village of Lyndon Station and Village Board of Lyndon Station, Defendants, Larry Whaley and Kristi Whaley, Intervenors-Appellants.
• Court: Wisconsin Supreme Court

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2023 WI 46

Thomas G. Miller,Plaintiff-Respondent-Petitioner,
v.
Zoning Board of Appeals of the Village of Lyndon Station and Village Board of Lyndon Station, Defendants,

Larry Whaley and Kristi Whaley, Intervenors-Appellants.

No. 2021AP1764

Supreme Court of Wisconsin

June 6, 2023

ORAL ARGUMENT: March 13, 2023

REVIEW OF DECISION OF THE COURT OF APPEALS Reported at 404 Wis.2d 539, 980 N.W.2d 295 PDC No: 2022 WI.App. 51 - Published

Circuit Court Juneau County, L.C. No. 2020CV178 William Andrew Sharp Judge

For the plaintiff-respondent-petitioner, there were briefs filed by Kathleen Henry and Dairyland Public Interest Law, Madison. There was an oral argument by Kathleen Henry.

For the intervenors-appellants, there was a brief filed by Mitchell R. Olson, Zachariah J. Sibley, Michael P. Van Kleunen, and Axley Brynelson, LLP, Madison. There was an oral argument by Zachariah J. Sibley.

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REBECCA FRANK DALLET, J.

REVIEW of a decision of the Court of Appeals. Affirmed.

¶ 1Trustee Jan Miller serves on the Village Board of Lyndon Station. She cast the deciding vote in favor of her daughter and son-in-law's application to amend the Village's zoning ordinance to rezone their vacant residential property for commercial development. A local business owner, Thomas Miller (no relation), argues that the

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vote violated his right to due process because Trustee Miller was partial to her daughter and son-in-law's rezoning application. We reject this argument because there is no due process right to impartial decision-makers when a legislative body like the Village Board enacts, repeals, or amends a generally applicable law like the zoning ordinance. Accordingly, we affirm the court of appeals' decision. I

¶ 2 Kristi and Larry Whaley own a 1.87 acre property in Lyndon Station. Although most nearby properties are zoned as commercial, their property was zoned as residential.

¶ 3 The Whaleys contracted to sell their property on the condition that it be rezoned for commercial development. They then applied for rezoning pursuant to the Village's regular process, which proceeds as follows: The application is first sent to the Village's five-member Plan Commission^[1] for a public meeting and vote on whether to recommend the zoning change. If the Plan Commission recommends the change, the three-member Village Board then holds a public hearing at which it must consider statements by the applicant and anyone else who wants to speak. Finally, the Village Board votes on whether to amend the zoning ordinance. 3

¶ 4 Trustee Miller serves on both the Plan Commission and the Village Board. She is also Kristi Whaley's mother and lived with the Whaleys during the relevant period.^[2] Shortly after the Whaleys filed their rezoning application, some residents expressed concerns that Trustee Miller had a conflict of interest.^[3]

¶ 5 The Plan Commission (with Trustee Miller participating) voted to recommend that the Village Board approve the Whaleys' application and amend the zoning ordinance. Subsequently, the Village Board held a public hearing where Thomas Miller and others spoke against the proposed rezoning. Miller owns Miller's General Store and opposed the rezoning for several reasons, including because the prospective buyer planned to redevelop the property into a chain store that would compete with his business. Miller and other residents also questioned whether Trustee Miller had a conflict of interest that should preclude her from participating in the vote.

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¶ 6 Trustee Miller's participation was decisive in the Village Board's 2-1 vote to grant the Whaleys' application and amend the zoning ordinance. Miller appealed to the Village's Zoning Board of Appeals (ZBA) arguing that "[t]here was a clear conflict of interest involving the vote from Trustee Jan Miller." The ZBA subsequently upheld the Village Board's vote to amend the zoning ordinance.

¶ 7 Miller sought certiorari review of the ZBA's decision pursuant to Wis.Stat. § 62.23(7)(e)10. (2021-22),^[4] again alleging that Trustee Miller should not have participated in the Village Board vote. The Whaleys intervened to defend the ZBA's decision. The circuit court^[5] reversed the ZBA's decision, concluding that Trustee Miller's participation in the Village Board vote violated due process because she was not a fair and impartial decision-maker.

¶ 8 The Whaleys^[6] appealed and the court of appeals reversed. See Miller v. Zoning Bd. of Appeals, 2022 WI.App. 51, ¶2, 404 Wis.2d 539, 980 N.W.2d 295. The court of appeals assumed that Trustee Miller "was partial to her daughter and son-in-law's rezoning request," but nonetheless concluded that her participation in the vote did not violate due process.

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See id. ¶¶26, 33. To explain why, the court of appeals distinguished between adjudicative acts, which involve "application of [a] zoning ordinance to a particular set of facts and circumstances," and legislative acts like amending a zoning ordinance. Id., ¶¶40-41. For adjudicative acts, the court of appeals explained that due process requires an impartial decision-maker. Id., ¶40. But according to the court of appeals, the same is not true of legislative determinations like those at issue here--deciding whether to enact, repeal, or amend a generally applicable law like a zoning ordinance. See id., ¶¶39-42. In...