Moreschi v. Vill. of Williams Bay

• Decision Date: 30 December 2020
• Docket Number: No. 2018AP283,2018AP283
• Parties: Gail MORESCHI, Plaintiff-Appellant-Petitioner, v. VILLAGE OF WILLIAMS BAY and Town of Linn ETZ Zoning Board of Appeals, William L. Edwards and Suzanne Edwards, Defendants-Respondents.
• Court: Wisconsin Supreme Court

395 Wis.2d 55

953 N.W.2d 318

2020 WI 95

Gail MORESCHI, Plaintiff-Appellant-Petitioner,

v.VILLAGE OF WILLIAMS BAY and Town of Linn ETZ Zoning Board of Appeals, William L. Edwards and Suzanne Edwards, Defendants-Respondents.

No. 2018AP283

Supreme Court of Wisconsin.

Oral Argument: September 8, 2020

Opinion Filed: December 30, 2020

For the plaintiff-appellant-petitioner, there were briefs filed by Charles W. Pollard, Edward F. Thompson and Clair, Thompson & Pollard, S.C., Delavan. There was an oral argument by Charles W. Pollard.

For the defendant-respondents Village of Williams Bay Town of Linn ETZ Zoning Board of Appeals, there was a brief filed by Thomas C. Cabush, Dustin T. Woehl and Kasdorf Lewis & Swietlik, SC, Milwaukee. There was an oral argument by Thomas C. Cabush.

For the defendants-respondents William L. Edwards and Suzanne Edwards, there was a brief filed by Anthony A. Coletti and Law Offices of Anthony A. Coletti, S.C., Elkhorn. There was oral argument by Anthony A. Coletti.

DALLET, J., delivered the majority opinion of the Court with respect to all parts except ¶¶23 and 24, in which ROGGENSACK, C.J., ANN WALSH BRADLEY, ZIEGLER, and KAROFSKY, JJ., joined, and an opinion with respect to ¶¶23 and 24, in which ANN WALSH BRADLEY and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring opinion, in which ROGGENSACK, C.J., joined. REBECCA GRASSL BRADLEY, J., filed a dissenting opinion.

REBECCA FRANK DALLET, J.

¶1 A person aggrieved by a local zoning board's decision may commence a certiorari-review action "within 30 days after the filing of the decision in the office of the board of appeals." Wis. Stat. § 62.23(7)(e)10. (2017-18).¹ After the Village of Williams Bay Extraterritorial Zoning Board of Appeals (the "Board") approved Suzanne and William Edwards’ variance request, Gail Moreschi, the Edwardses’ neighbor, filed a writ of certiorari. She filed her writ within 30 days after the Board orally voted to grant the Edwardses a variance but well before the Board issued and filed a written copy of its decision. We must determine the "triggering event" for an aggrieved party's right to certiorari review of a local zoning board of appeals’ decision. We conclude that, pursuant to § 62.23(7)(e)10., certiorari review of the board's decision is triggered when a written copy of the decision is filed in the board's office.

¶2 That conclusion informs our decision regarding Moreschi's other two claims: (1) that her due process rights were violated by the inclusion of the Board's written decision and its approved minutes in the certiorari record; and (2) that the Board reached its decision under the incorrect theory of law because at the time she filed her writ, the Board had not made the findings required under the relevant local ordinance. We reject both claims. The Board's written decision and approved minutes were properly included in the certiorari record and the Board's filed decision contains all findings required by the local ordinance. Accordingly, we affirm the court of appeals.

I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE

¶3 Gail Moreschi owns residential property in Linn Township next to Suzanne and William Edwards. The Edwardses tore down the existing home on their property with plans to rebuild it, but their plans required a variance to the setback zoning ordinance. After Linn Township approved their building plans, the Edwardses petitioned the Board for a zoning variance.²

¶4 On May 23, 2017, the Board held a public hearing on the Edwardses’ request. The Edwardses argued that a variance was necessary in order to install a septic system and, because their lot had a 12-percent slope and trees that Linn Township required them to preserve, there was only one place they could put it. The septic system's placement, in turn, dictated where the Edwardses could build their home. They noted that their new home would have "roughly ... the same footprint" as the previous home although it would "actually encroach[ ] a little bit less into the setbacks." The Edwardses argued that their request satisfied the five conditions necessary for the Board to grant a variance pursuant to Village of Williams Bay Extraterritorial Zoning (ETZ) Ordinance § 18.1716(H)³ : (1) their proposal was consistent with the local development's purpose and intent; (2) the lot's slope constituted an exceptional circumstance; (3) they had not caused any of the reasons necessitating the variance; (4) they could not build their home without the variance; and (5) there was no detriment to Moreschi's property because the Edwardses’ new home would be three feet further away from Moreschi's property line than the previous one.⁴

¶5 Moreschi opposed the Edwardses’ variance request on the grounds that it failed to meet at least one of those conditions. Specifically, she argued that, according to an affidavit of the Walworth County Sanitarian, the Edwardses had several other options available that would not require a variance. Those options included moving their driveway to accommodate the septic system, installing a smaller system, using a holding tank instead of a septic system, or simply building a smaller home. Moreschi asserted that because the Edwardses would not be prevented from building any home, a variance was not necessary to preserve their property rights.

¶6 At the hearing, the Board heard community commentary on the Edwardses’ request. Some in favor of the variance noted that the Edwardses’ plans were consistent with attempts to "modernize" the subdivision and that denying the Edwardses a variance would frustrate that process. Some against it pointed out that what the Edwardses claimed as an "exceptional circumstance," a 12-percent slope, was not exceptional at all because "virtually all properties" in the subdivision had similar slopes. At the end of the hearing, the Board unanimously approved the Edwardses’ variance request by oral vote.

¶7 On June 12, 2017, Moreschi filed for a writ of certiorari in the Walworth County Circuit Court.⁵ She alleged that the Board improperly granted the Edwardses a variance because it failed to find beyond a reasonable doubt all five conditions required under ETZ Ord. § 18.1716(H). The circuit court granted the writ on June 28, 2017, giving the Board until July 7 to return a certified transcript of the record. Also on June 28, Moreschi received draft minutes of the Board's May 23 hearing via an open records request. The draft minutes reflected the Board's unanimous approval of the Edwardses’ variance. Under the heading "Board of Appeals[’] Findings," the draft minutes indicated that the Board had approved the variance because it "felt that there was a lack of detriment."

¶8 At the Board's next meeting on July 31, the Board issued "approved" minutes of the May 23 hearing, which included expansive factual findings not included in the draft minutes.⁶ At the July 31 meeting, the Board also issued a signed, written document titled "Determination Form." The Determination Form reiterated the factual findings from the approved minutes and included specific conclusions on each of the five conditions required under ETZ Ord. § 18.1716(H):

The Board found beyond a reasonable doubt that: (1) the requested variance is consistent with the purpose and content of the regulations for the district and a permitted use—a single family residence; (2) exceptional circumstances exist re: the location of the septic system on the lot and a 12% slope on the lot justifying the requested variance; (3) economic hardship is not the basis for granting the variance; (4) the variance is necessary to preserve the property rights and enjoyment of the property by the owner who looks to build a single family home on the property that is consistent with other homes in the district; and (5) the variance will not create a substantial detriment to the adjacent properties because the new home will be set back further from the property lines than the pre-existing home.

That same day, both the approved minutes and the Determination Form were filed in the Board's office.⁷

¶9 The day after the Board's July 31 meeting, the Board submitted the certiorari record to the circuit court. The record contained the approved minutes, the Determination Form, a recording of the May 23 hearing, the Edwardses’ variance application, and documents the parties presented at the May 23 hearing. Following briefing and a hearing, the circuit court affirmed the Board's decision granting the Edwardses a variance.

¶10 Moreschi appealed the circuit court's decision on both procedural and substantive grounds. Her procedural claim was that the Board violated her due process rights when it included the approved minutes and Determination Form in the certiorari record. She maintained that the circuit court should have reviewed only the documents that existed at the time she filed for a writ: the transcript of the May 23 hearing and the draft minutes. As for Moreschi's substantive claim, she argued that the Board made its decision under the incorrect theory of law because at the time she filed for a writ, the Board had not explicitly found beyond a reasonable doubt that the Edwardses’ variance met the five conditions set forth in ETZ Ord. § 18.1716(H).

¶11 The court of appeals rejected both of Moreschi's claims. Moreschi v. Vill. of Williams Bay & Town of Linn ETZ Zoning Bd. of Appeals, No. 2018AP283, unpublished slip op., 2019 WL 3432526 (Wis. Ct. App. July 31, 2019). The court of appeals held that the Determination Form was the Board's decision that was filed in the office of the Board for purposes of triggering certiorari review. In reaching its conclusion, the court of appeals determined that only the Determination Form could be both filed as set forth in Wis. Stat. § 62.23(7)(e)10. and signed and transmitted to the applicant or appellant as required by ETZ Ord. § 18.1716(J). It also held that the Board did not violate Moreschi's due process rights by including the Determination Form...