Rodgers v. Village of Menomonee Falls

• Decision Date: 03 October 1972
• Docket Number: No. 231,231
• Citation: 201 N.W.2d 29,55 Wis.2d 563
• Parties: Marvin E. RODGERS, Jr., et al., Appellants, v. VILLAGE OF MENOMONEE FALLS et al., Respondents.
• Court: Wisconsin Supreme Court

Page 29

201 N.W.2d 29

55 Wis.2d 563

Marvin E. RODGERS, Jr., et al., Appellants, v. VILLAGE OF MENOMONEE FALLS et al., Respondents.

No. 231.

Supreme Court of Wisconsin.

Oct. 3, 1972.

Niebler & Niebler, Menomonee Falls, Chester J. Niebler, Menomonee Falls, of counsel, for appellants.

Puls & Puls, Milwaukee, for Vil. of Menomonee Falls.

Kraemer, Binzak & Sylvan, Menomonee Falls, Foley & Lardner, Milwaukee, of counsel, for CAM Development Corp.

HANLEY, Justice.

There are three issues presented on this appeal:

(1) Should sec. 62.23(7)(d), Stats., be construed so as to make the area of potential protest the area adjacent to and 100 feet from the boundary line of the property of the party seeking the zoning change, rather than the property for which rezoning is sought;

(2) Should the resolution passed by the school district at its annual meeting be treated as a valid protest to the petition for rezoning; and

(3) Was the rezoning of the 42-acre parcel illegal spot zoning?

Statutory Area of Permissible Protest.

Appellants argue that the 100-foot boundary line prescribed by sec. 62.23(7) (d), Stats., should be construed as extending 100 feet from the outermost limits of the land owned by the party seeking a zoning change, rather than from the land for which the zoning is sought. Realizing the need for extra diligence in the amending of zoning regulations, the legislature has set forth in sec. 62.23(7)(d), Stats., a procedure whereby certain specified landowners may protest the enactment of zoning chances. In part it provides:

'. . . In case, however, of a protest against such change, duly signed and acknowledged by the owners of 20% or more either of the areas of the land included in such proposed change, or by the owners of 20% or more of the area of the land immediately adjacent extending 100 feet therefrom, or by the owners of 20% or more of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of three-fourths of the members of the council.'

The above provision was construed in the case of Prescher v. Wauwatosa (1967), 34 Wis.2d 421, 149 N.W.2d 541, where this court held that only landowners adjacent to the land where the proposed change is to be made, and not those adjacent to the borders of a whole zoning district in which a specific area is being rezoned, are to be considered as valid protesters under the statute. The court set forth the policy considerations which precluded the statute from embracing the 'district concept' there argued for:

'. . . The purpose of sec. 62.23(7)(d), Stats., was to permit protest by landowners directly affected by zoning changes. Landowners whose property borders on land to be rezoned are directly affected because their land value and enjoyment of their property decreases. People on the periphery of areas to be rezoned are not so directly affected. . . .' Prescher v. Wauwatosa, supra, at page 431, 149 N.W.2d at page 546. (Emphasis supplied.)

Here, CAM had on the south and west left a strip 150-foot wide zoned completely consistent with the areas bordering it, namely, single family residential housing.

Protest statutes similar to sec. 62.23(7)(d) of the Wisconsin statutes are common to several states and the 'district concept' has always been rejected. In North Carolina the 'district concept' was rejected in the following cases: Penny v. Durham (1959), 249 N.C. 596, 107 S.E.2d 72; Armstrong v. McInnis (1965), 264 N.C. 616, 142 S.E.2d 670; and Heaton v. Charlotte (1971), 277 N.C. 506, 178 S.E.2d 352. In each case the developer sought rezoning of a large tract of land from single family residential to commercial and/or multi -family residential. In each case the developer insulated his request for change by leaving a 'buffer area' of from 100 to 150 feet between the area to be rezoned and the surrounding community. In each case the North Carolina court in construing their statute rejected the protesters' contentions. The court in Heaton v. Charlotte, supra, at page 527, 178 S.E.2d at page 365, quoted from 1 Rathkopf, The Law of Zoning and Planning (3d ed. 1969), ch. 28, sec. 28--(11), where it stated that:

'. . . (W)here an applicant for a zoning change seeks to avoid the necessity of a larger than majority vote by creating a buffer zone of 100 feet between that portion of his property sought to be rezoned and the lands of adjacent property owners, such action is valid and avoids the requirement of such larger vote.'

The use of 'buffer zones' has also been sustained by the New York courts. In Miner v. Yonkers (1959), 19 Wisc.2d 321, 189 N.Y.S.2d 762, aff'd. 9 A.D.2d 907, 195 N.Y.S.2d 242, a 200-foot space was left between an area rezoned for department store purposes, and the remainder of the district was devoted to multi-family residential uses.

The trial court's conclusion that the 150-foot strip on the west and south sides of the tract, which remained zoned RS--2, does legally eliminate the right of property owners adjacent to the outside boundaries of the whole property from being legal protesters under sec. 62.23(7)(d), Stats., is correct.

Annual District Meeting Resolution.

The appellants contend that the resolution passed at the district school meeting on July 29, 1969, some 14 months prior to the date of the adoption of the ordinance, was sufficient to block any rezoning in the future by anything less than a three-quarters or six to one vote by the village board.

Appellants' contentions on this point have again already been considered and rejected by this court in Prescher v. Wauwatosa, supra. In that case, one Grede filed a protest to a proposed rezoning. A few days later, the proposed rezoning was modified slightly and resubmitted. Grede then did not file a protest although he was given an opportunity to do so. The trial court held that, because the two proposed rezonings were so similar, the objection to the first one should stand as an objection to the second. This court reversed, noting 34 Wis.2d at page 429, 149 N.W.2d at page 545:

'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. . . .

'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 school district here was given notice of its opportunity to file a protest too. But it did not file a protest. The only reasonable presumption is that in November of 1970, the Joint School District No. 1 did not wish to file a protest, regardless of its intent back in July of 1969.

We are satisfied that the resolution...