Prescher v. City of Wauwatosa

• Court: Wisconsin Supreme Court
• Writing for the Court: WILKIE; HANSEN
• Citation: Prescher v. City of Wauwatosa, 149 N.W.2d 541, 34 Wis.2d 421 (Wis. 1967)
• Decision Date: 11 April 1967
• Parties: Robert PRESCHER and Edith Prescher et al., Plaintiffs-Respondents, v. CITY OF WAUWATOSA, a municipal corporation, and Sid H. Sinar, Building Inspector, Defendants, Alan R. Crawford, Daniel C. Corcoran and Danford Realty Corporation, Intervening Defendants-Appellants, Bernard Hess, Clara Hess and William J. Grede, Impleaded Defendants.

Page 541

149 N.W.2d 541

34 Wis.2d 421

Robert PRESCHER and Edith Prescher et al., Plaintiffs-Respondents, v. CITY OF WAUWATOSA, a municipal corporation, and Sid H Sinar, Building Inspector, Defendants Alan R. Crawford, Daniel C. Corcoran and Danford Realty Corporation, Intervening Defendants-Appellants Bernard Hess, Clara Hess and William J. Grede, Impleaded Defendants.

Supreme Court of Wisconsin.

April 11, 1967.

Mount & Keck, Milwaukee, Maxwell H. Herriott, Milwaukee, of counsel, for appellants.

Godfrey, Trump & Davidson, Milwaukee, Kneeland A. Godfrey and Thomas W. Godfrey, Milwaukee, of counsel, for respondents.

WILKIE, Justice.

Two issues are dispositive of this appeal:

1. Does a protest filed against an initial zoning ordinance, which protest and ordinance were placed on file when a second ordinance was introduced, apply against the second ordinance where the protesting party was given an opportunity to sign a new protest against the second ordinance by declined to do so?

2. Is the protest area contemplated by sec. 62.23(7)(d), Stats., within or adjacent to the proposed rezoning rather than the entire tract so that the protest of the plaintiffs is not effective?

The Grede Protest.

The protest signed and filed by Grede was effective as to the first ordinance. That protest was couched in broad terms against a change of zoning. But that protest is not effective as to the second ordinance. It is defective for the reason that Grede was given an opportunity to join in the protest as to the second ordinance and unequivocally refused to do so.

There may be instances where a categorically-stated protest may be so plain that it may stand not only against an ordinance but also against a revision that contemplates no substantial change, and which is considered in such close proximity that it is clear that the protest as to the original ordinance should stand as to the revision. But this is not the instant situation.

The two ordinances contained differences substantial enough to warrant an entire legislative reprocessing of the second ordinance. Both changes from the original ordinance involved upgrading in the quality of the apartment buildings. Furthermore, the ordinances were not contiguous in time. The first ordinance was placed on file on March 1, 1966, and the second ordinance was not enacted until April 12, 1966. This gave the protesters six weeks to marshal their forces. Moreover, the protesters were on notice from the express statements of the city attorney that the council would not consider the Grede protest valid against the second ordinance unless Grede refiled his protest. After the March 1st meeting of the council, the proposed second ordinance went through the procedure requisite for enactment by the council. The ordinance was referred to the public welfare committee and the city plan commission. Legal notice was made and a public hearing was held. All this involved a six-week time lag affording Grede a chance to file his protest anew.

The trial court's major consideration in determining that Grede's protest as to the first ordinance applied to the second ordinance was that the protest was couched in broad terms against changing the zoning of the proposed land to permit any apartment development. Essentially, this involved a determination by the trial court of what Grede's intention was as to the second ordinance by the language he used in the protest to the first ordinance. The facts of the instant case do not warrant such an assumption.

Grede was tendered an opportunity to protest and could have done so by the simple act of signing his name. The written protest tendered to Grede contained a precise statement of what the proposed second ordinance was designed to do, and he declined to sign it. Moreover, he took the trouble to return the unsigned protest to the soliciting attorney. This manifests a clear intention that Grede did not want to protest the second ordinance. By giving Grede's protest to the initial ordinance effect as to the second ordinance, the trial court has resurrected the first protest in spite of an intention on the part of Grede not to protest, although offered every opportunity to do so.

A protester should not be permitted to tie up an entire legislative process by filing a general protest at a given point in time. It is true that sec. 62.23(7)(d), Stats., is designed to protect adjacent landowners from zonings changes, and the statutes have extended a great deal of protection to such persons. Nevertheless, the fact remains that a majority of the councilmen voted for the second ordinance. Protesters are permitted to block the wishes of a simple majority, but positive action should be required. The trial court contends that formal action is required to withdraw a protest and cites several cases to this effect. ¹ All these cases deal with filing a petition to initiate a referendum and require that a verified statement be submitted to remove a name from a petition. These cases are not similar to the case at bar because, in the case at bar, the ordinance to which the protest was directed was withdrawn, and an intention not to protest the new ordinance was manifested.

Thus, the trial court incorrectly ruled that the Grede protest was valid against the second ordinance. Grede's land was an integral part of the adjacent protester's requirement of 20 percent of the land adjacent to the proposed change. Without Grede's protest, (assuming plaintiffs' protest ...