Oliveira v. City of Milwaukee, 98-2474.
| Decision Date | 03 April 2001 |
| Docket Number | No. 98-2474.,98-2474. |
| Citation | 624 N.W.2d 117,242 Wis.2d 1,2001 WI 27 |
| Parties | Rosemary K. OLIVEIRA and Shawnette J. Smart, Plaintiffs-Appellants, Robert E. KLAVETTER, Plaintiff, v. CITY OF MILWAUKEE and American Stores Properties, Inc., Defendants-Respondents-Petitioners. |
| Court | Wisconsin Supreme Court |
For the defendant-respondent-petitioner, City of Milwaukee, there were briefs and oral argument by Thomas O. Gartner, assistant city attorney, with whom on the briefs was Grant F. Langley, city attorney.
For the defendant-respondent-petitioner, American Stores Properties, Inc., there were briefs by Ralph A. Weber, Colleen D. Ball, Marcia MacKenzie, and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee, and oral argument by Ralph A. Weber.
For the plaintiffs-appellants there was a brief by Joseph R. Cincotta and Schweitzer & Cincotta, LLP, Milwaukee, and oral argument by Joseph R. Cincotta.
¶ 1.
This is a review of a published decision of the court of appeals, Oliveira v. City of Milwaukee, 2000 WI App 49, 233 Wis. 2d 532, 608 N.W.2d 419, reversing the judgment of dismissal of the Circuit Court for Milwaukee County, Louis J. Ceci, Reserve Judge. We reverse the decision of the court of appeals and affirm the judgment of dismissal of the circuit court.
¶ 2. The circuit court dismissed the complaint of Rosemary K. Oliveira and Shawnette J. Smart, the plaintiffs, who sought declaratory and injunctive relief against the City of Milwaukee and American Stores Properties, Inc. (together referred to as the City). The plaintiffs challenged the rezoning of a parcel of land that would allow the defendant, American Stores Properties, Inc., to build a Jewell/Osco store on the parcel. The court of appeals reversed the judgment of dismissal of the circuit court.
¶ 3. At issue is the Milwaukee Common Council's enactment of two zoning amendments that had been referred initially to the common council's zoning committee for a hearing. That hearing was properly noticed under Wis. Stat. § 62.23(7)(d)2. (1997-98).1 Because the zoning committee did not act on the proposed zoning amendments, the common council president introduced duplicate zoning amendments and referred them to a different committee. The question of law before the court is whether notices of a hearing on proposed zoning amendments before the zoning committee were sufficient under Wis. Stat. § 62.23(7)(d)2. and due process guarantees to enable the common council to enact duplicate zoning amendments that had been referred to a different committee without additional notices.2
¶ 4. We conclude that the Milwaukee Common Council did not violate Wis. Stat. § 62.23(7)(d)2. or constitutional guarantees when it failed to give additional § 62.23(7)(d)2. notices relating to the duplicate zoning amendments that were referred to a different committee and enacted by the common council. Wisconsin Stat. § 62.23(7)(d)2. and constitutional due process guarantees were satisfied in the present case by publishing notices for a committee hearing on the original proposed zoning amendments. Accordingly we reverse the decision of the court of appeals. The judgment of the circuit court dismissing the complaint is affirmed.
¶ 5. The relevant facts in this case are not in dispute. Two zoning amendments were necessary to enable American Stores to build a Jewell/Osco store on the parcel in issue: one amendment to repeal the existing detailed planned development and a second amendment to implement a new detailed planned development in accordance with American Stores' proposal.
¶ 6. The two amendments, in files numbered 970857 and 970859 respectively, were introduced in the Milwaukee Common Council on September 23, 1997. The two amendments were referred to the zoning, neighborhoods, and development committee (zoning committee), the committee to which the common council assigns zoning matters.
¶ 7. On February 3, 1998, the zoning committee held a public hearing on the two proposed zoning amendments after notices were given in accordance with Wis. Stat. § 62.23(7)(d)2. The City of Milwaukee published the notices regarding the proposed zoning amendments in file numbers 970857 and 970859, each stating: "Notice is hereby given that an ordinance (passage of which is now pending) was introduced at the September 23, 1997 meeting of the Milwaukee Common Council, the essence of which is as follows." The notices then provided detailed information regarding the substance of the proposed amendments. The notices concluded by stating that the hearing would be held before the zoning committee, and by giving the date, time, and location of the hearing. The notices of the public hearing were published on January 20 and 27, 1998.
¶ 8. After the public hearing, the zoning committee members voted to "hold to the call of the chair," meaning that the zoning committee would take no action on the files at that meeting. The zoning committee considered the two amendments at a second hearing on February 24, 1998, when the zoning committee again voted to hold the files.
¶ 9. After the zoning committee held the files at this second hearing, the president of the common council wrote all members of the common council announcing his intent to create duplicate files for the two proposed zoning amendments and to refer the duplicate files to the steering and rules committee. His letter further stated that the steering and rules committee would act on these duplicate files only if the zoning committee failed to vote on the proposed zoning amendments at its next meeting.
¶ 10. On February 26, 1998, the president of the common council introduced the two duplicate files, numbers 971743 and 971744, and referred the duplicate files to the steering and rules committee. When the zoning committee did not act on the original files on the proposed zoning amendments at its March 17, 1998, meeting, the steering and rules committee held a public hearing on April 1, 1998, and approved the duplicate files.
¶ 11. The City of Milwaukee did not give the type of notices set forth in Wis. Stat. § 62.23(7)(d)2. for the April 1, 1998, hearing before the steering and rules committee. However, the plaintiffs acknowledge that the City of Milwaukee did mail a notice of the April 1, 1998, hearing before the steering and rules committee to a large number of persons in the vicinity of the property in issue.3
¶ 12. The common council then approved the duplicate files at a public meeting on May 5, 1998, and the mayor subsequently signed the zoning amendments into law.
¶ 13. The plaintiffs brought suit alleging that the common council failed to comply with the notice provisions of Wis. Stat. § 62.23(7)(d)2. before enacting the proposed zoning amendments contained in the duplicate files. The circuit court dismissed their action, holding that the complainants lacked standing and rejecting the legal challenges on the merits. The court of appeals reversed the judgment of the circuit court, concluding that the common council was required under Wis. Stat. § 62.23(7)(d)2. to give second notices once duplicate zoning amendments were submitted to a different committee.
¶ 14. After the court of appeals decision, the zoning committee released the original files, numbered 970857 and 970859, for which the properly noticed public hearing had been held on February 3, 1998. The common council enacted the zoning amendments in these original files on April 11, 2000. The plaintiffs do not challenge the legality of this action before this court.
[1]
¶ 15. Arguably, the common council's enactment of the zoning amendments in the original files on April 11, 2000, renders moot the plaintiffs' challenge in the present case to the enactment of the zoning amendments in the duplicate files.4 The parties have, however, asked this court to address the plaintiffs' challenge under Wis. Stat. § 62.23(7)(d)2. They contend, and we agree, that a decision by this court regarding the scope of Wis. Stat. § 62.23(7)(d)2. will provide guidance to municipalities, litigants, and courts. Although a reviewing court will not ordinarily consider questions that have become moot, it will decide a moot question if it is of great importance.5 In light of the doubts about the mootness of the case and the importance of this issue for guidance to municipalities, litigants, and courts, this court now reviews the decision of the court of appeals without the necessity of determining whether the cause is moot.
¶ 16. Before we proceed to the question of law presented, we discuss the City of Milwaukee's assertion that the complaint should be dismissed because the plaintiffs have failed to comply with the notice of claim provision of Wis. Stat. § 893.80(1)(b). The parties dispute whether Wis. Stat. § 893.80(1)(b) applies to the present cause of action. The court of appeals concluded that § 893.80(1)(b) does not apply to injunction actions authorized by statute, citing Gillen v. City of Neenah, 219 Wis. 2d 806, 822, 580 N.W.2d 628 (1998). ¶ 17. During the hearing before the circuit court, the Milwaukee city attorney raised the notice of claim issue but asked the circuit court to decide the case anyway. The city attorney argued that if the complaint were dismissed, the plaintiffs would merely file the notice of claim and then proceed to litigation. The City stated:
We would ask the court, however, to make its decision today based on the merits of this case not based on the claim statute.... [I]f this action is dismissed based on that argument, it will simply delay things for as long as it takes the Council to act, for a hundred twenty days; and then the plaintiffs would be free to refile the same lawsuit. As long as the affected parties are in Court today, it seems appropriate to resolve this matter on its merits.
¶ 18. The City of Milwaukee made a similar argument before this court, stating:
We did not waive...
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