Miller v. Zoning Bd. of Appeals of the Vill. of Lyndon Station
| Docket Number | Appeal No. 2021AP1764 |
| Decision Date | 25 August 2022 |
| Citation | 404 Wis.2d 539,980 N.W.2d 295,2022 WI App 51 |
| Parties | Thomas G. MILLER, Plaintiff-Respondent, 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 Court of Appeals |
On behalf of the intervenors-appellants, the cause was submitted on the briefs of Mitchell R. Olson of Axley Brynelson, LLP, Madison.
On behalf of the plaintiff-respondent, the cause was submitted on the brief of Kathleen Henry of Dairyland Public Interest Law, Madison.
Before Kloppenburg, Fitzpatrick, and Graham, JJ.
¶1 Larry and Kristi Whaley appeal a circuit court judgment that reversed a decision by the Village of Lyndon Station Zoning Board of Appeals (the "Village ZBA").1 In its decision, the Village ZBA upheld the vote by the Village Board of Lyndon Station (the "Village Board") to rezone the Whaleys’ property and, in so doing, necessarily determined that there was no error in the legislative process used by the Village Board to accomplish the rezoning. Thus, although this case comes to us as a certiorari review of the Village ZBA's decision to uphold the Village Board's vote, our review turns on whether the process used by the Village Board violated the due process rights of Thomas Miller, a Lyndon Station resident who opposed the rezoning. Specifically, Thomas Miller's due process challenge is based on the fact that Village Board Trustee Jan Miller, who is Kristi Whaley's mother, participated in the proceedings to rezone the Whaleys’ property.2
¶2 On appeal, the Whaleys assert that the circuit court lacked "jurisdiction" or "authority" to consider whether there was an error in the Village Board's rezoning proceedings and, further, that the participation and vote of an allegedly partial trustee did not violate due process. We conclude that the circuit court had jurisdiction and authority to consider whether there was an error in the Village Board's legislative process, and that Thomas Miller's arguments about Trustee Miller's participation in the rezoning proceedings fit within the proper scope of certiorari review. However, we reverse the circuit court on the merits, concluding that the Village ZBA correctly determined that the Village Board's rezoning decision was not in error as a result of Trustee Miller's participation and vote.
¶3 Larry and Kristi Whaley own a 1.87 acre vacant lot in the Village of Lyndon Station, a municipality with a population of just under 500. We refer to the Whaleys’ lot as "the subject property" throughout this opinion.
¶4 The subject property is surrounded almost entirely by commercial property. However, at the time the Whaleys purchased it, the subject property was zoned as G1-Residential, a classification that does not allow for commercial development. The Whaleys then entered into a contract to sell the subject property, allegedly for a significant profit, to a third party for future commercial development. The contract was contingent on the Whaleys obtaining the zoning approvals necessary to allow for commercial development of the subject property.
¶5 Based on materials in the administrative record, we understand that the Village uses the following process when considering a property owner's request for rezoning. First, the property owner files a rezoning application with the Village Board,3 and the Village Board refers the application to the Village Plan Commission for a recommendation and report.4 The Plan Commission then holds a public meeting (preceded by public notice), and it votes on whether to recommend the adoption of a resolution amending the zoning ordinance consistent with the property owner's application. If the Plan Commission votes to recommend the adoption of a resolution, the Village Board schedules a public hearing (also preceded by public notice). At the public hearing, the Village Board is required to take public comment and "consider statements made by the applicant and anyone else who wishes to be heard." The Village Board then votes on whether to adopt the resolution to amend the Village's zoning ordinance.
¶6 In this case, consistent with the process described above, the Whaleys submitted an application to the Village Board requesting that the subject property be rezoned from residential to commercial. The issue presented by this appeal relates to Trustee Jan Miller's participation in the proceedings that followed. At all relevant times, Trustee Miller was chair of the Plan Commission and a trustee on the Village Board. She is also Kristi Whaley's mother and lived with the Whaleys at all relevant times.
¶7 At a subsequent Village Board meeting, held after the Whaleys submitted their rezoning application, Village residents questioned whether Trustee Miller had a conflict of interest that would prevent her from voting on the application. In response, the Village's attorney asserted that "Trustee Miller does not have a conflict of interest as she does not receive nor will be receiving any monetary values from the rezoning of the property in question." WISCONSIN STAT. § 19.59 is the statutory provision governing conflicts of interest for local government officials, and the meeting minutes note that the Village's attorney "explained [its provisions] in detail."5 The minutes also note that "there were a few questions from the audience," but the record does not reveal their substance.
¶8 The Plan Commission held a meeting and voted 3-1 in favor of recommending that the Village Board adopt a resolution consistent with the Whaleys’ rezoning application. Trustee Miller participated in the Plan Commission's proceedings and voted to recommend the resolution to the Village Board.
¶9 The Village Board held a public hearing on the Plan Commission's recommendation. Two residents spoke in favor of the Whaleys’ application, and nine residents, including Thomas Miller, spoke against it. Miller, who is the plaintiff-respondent in this matter, owns and operates Miller's General Store and three rental properties, all located within the vicinity of the subject property in the Village of Lyndon Station. Miller opposed the rezoning because he believed that the property would be developed by a competing chain store, which he contended would cause his store "to go out of business" and would detrimentally impact the aesthetics, character, and finances of the Village.
¶10 During the hearing, other residents commented on Trustee Miller's participation in the vote. One resident questioned "the ethics of Trustee Jan Miller and her ability to vote on the rezoning issue," and another stated that "Trustee Miller should not be allowed to vote and should [abstain] from the vote." Trustee Miller did not recuse herself, and the Village Board ultimately voted 2-1, with Trustee Miller voting with the majority, to adopt the resolution amending the Village's zoning ordinance consistent with the Whaleys’ rezoning application.6 Accordingly, Trustee Miller provided the decisive vote in favor of the resolution.
¶11 Following the Village Board's decision, Miller appealed to the Village ZBA, which held a public hearing on the appeal. One of Miller's several arguments was that "there was a clear conflict of interest involving the vote from Trustee Jan Miller." The Village ZBA voted 3-2 to uphold the Village Board's rezoning decision, and it sent Miller written notice of its decision.
¶12 Miller then filed a summons and complaint seeking certiorari review of the Village ZBA's decision pursuant to WIS. STAT. § 62.23(7)(e)10. As one basis for his complaint, he alleged that it was improper for Trustee Miller to have participated in the Village Board's proceedings and vote.7
¶13 The Village ZBA responded with a motion for judgment on the pleadings. It argued that rezoning is a legislative act, and that it had erred in accepting and considering Miller's appeal because the Village ZBA lacks authority to review a legislative decision by the Village Board. It further argued that a circuit court cannot declare a rezoning ordinance void, and that legislative rezoning decisions cannot be challenged by certiorari review.
¶14 Miller subsequently amended his summons and complaint, adding the Village Board as a defendant. The Village Board and the Village ZBA filed a joint motion for judgment on the pleadings, again asserting that the rezoning decision could not be challenged by certiorari review. The circuit court denied the joint motion for judgment on the pleadings.
The Whaleys moved to intervene in the lawsuit, and the circuit court granted their motion.8
¶15 Thereafter, Miller filed a motion seeking judgment in his favor.9 He argued that the Village Board and Village ZBA's votes were unlawful for various reasons, but as pertinent here, he argued that: (1) Trustee Miller's participation in the proceedings before the Village Board was a conflict of interest in violation of WIS. STAT. § 19.59(1)(c) ; and (2) this conflict of interest violated Miller's constitutional due process right to a fair and impartial hearing. Miller also argued that, to the extent that § 19.59(1)(d) allowed Trustee Miller to participate in the rezoning process, the statute was itself unconstitutional. The Village ZBA, the Village Board, and the Whaleys opposed the motion on various grounds. Among other things, the Village ZBA and Village Board repeated their earlier contention that the circuit court was not authorized to conduct certiorari review of either the Village Board's rezoning decision or the Village ZBA's decision to uphold the rezoning decision.
¶16 Following briefing by the parties, the circuit court reversed the Village ZBA's decision. The court concluded that the Village ZBA had the authority to consider Miller's appeal of the Village Board's decision and that the court had the authority to review the decisions of the Village ZBA and the ...
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