Sever v. Dane County

Citation568 N.W.2d 38,209 Wis.2d 602
Decision Date13 March 1997
Docket NumberNo. 96-1473,96-1473
PartiesNOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. Beth SEVER, Paul Sever, Duan Wheeler, Michael Wheeler, Michael Skibinski, Elizabeth A. Hoffman, Richard Waldschmidt, Honee Waldschmidt, Terry Hustad, Lisa D. Hustad, Gregory P. Garth and Denise M. Garth, Plaintiffs-Appellants, David J. Okada and Tina L. Okada, Plaintiffs, v. DANE COUNTY, WISCONSIN; Dane County Board Of Supervisors; Dane County Zoning and Natural Resources Committee and Its Members In Their Official Capacity, Lyman Anderson, Helen Hellenbrand, Kevin Kesterson, Joan Weckmueller, Eugene Kraft, John Hendrick and Philip Salkin; Dane County Board of Adjustment; James Gregorius, Dane County Zoning Administrator; Lyman F. Anderson, In His Individual Capacity; William G. Buglass; and Payne & Dolan, Inc., Defendants-Respondents.
CourtCourt of Appeals of Wisconsin

APPEAL from an order of the circuit court for Dane County: MORIA KRUEGER, Judge. Affirmed.

Before DYKMAN, P.J., VERGERONT and DEININGER, JJ.

DYKMAN, P.J.

Beth Sever, Paul Sever and several other residents of the town or village of Oregon (collectively "the Severs") filed a complaint with the circuit court seeking certiorari review of the methods and procedures by which Dane County governmental bodies approved Lyman Anderson's request for a conditional use permit (CUP). The Severs also sought a judgment declaring that the ordinances under which the defendants acted are unconstitutional.

The Severs appeal from the circuit court's order dismissing their complaint. They raise the following issues: (1) whether they were entitled to appeal the decision of the Dane County Zoning and Natural Resource Committee (ZNR Committee) to the Dane County Board of Adjustment (BOA); (2) whether they were entitled to a contested case hearing on administrative appeal under Chapter 68, STATS.; (3) whether the ZNR Committee and the County Board failed to comply with the procedures required by ordinance and by the concepts of fair play and due process; (4) whether the ZNR Committee and the County Board erred in concluding that the zoning ordinance allows blasting; and (5) whether the ZNR Committee and County Board acted arbitrarily, oppressively and unreasonably. We conclude that: (1) Dane County properly vested its County Board with the exclusive authority to review ZNR Committee decisions on CUP applications; (2) the Severs were not entitled to a contested case hearing under Chapter 68, STATS.; (3) the ZNR Committee and the County Board complied with all necessary procedural requirements; (4) the zoning ordinance allows for blasting; and (5) the ZNR Committee and County Board did not act arbitrarily, oppressively or unreasonably. We therefore affirm the circuit court's order.

BACKGROUND

Prior to June 30, 1995, Lyman Anderson and Payne & Dolan, Inc. entered into a mineral lease agreement that granted Payne & Dolan the right to extract mineral aggregate from approximately twenty-three acres of Anderson's property in the town of Oregon. Because this land was zoned as A-1 Agriculture (Exclusive), Anderson needed to obtain a conditional use permit (CUP) from Dane County before Payne & Dolan could initiate any quarry operations. Anderson applied to the Dane County Zoning and Natural Resources Committee (ZNR Committee) for the CUP. On August 22, 1995, the ZNR Committee approved Anderson's request with certain conditions.

The Severs appealed the ZNR Committee's decision to both the Dane County Board of Adjustment (BOA) and the Dane County Board. The Severs also requested the ZNR Committee to review its decision in accordance with the procedures of Chapter 68, STATS. The ZNR Committee did not review its decision under Chapter 68 and the BOA refused to hear the appeal, concluding that it did not have jurisdiction over CUP appeals. On September 21, 1995, the County Board affirmed the ZNR Committee's decision.

The Severs filed a complaint with the circuit court seeking certiorari review of Dane County's approval of the CUP, of the ZNR Committee's failure to review its decision under Chapter 68, STATS., and of the BOA's refusal to hear the appeal of the ZNR Committee's grant of the CUP. The Severs also sought a declaratory judgment that the ordinances under which the defendants acted were violative of state law and unconstitutional. After filing the complaint, the Severs sought a temporary injunction staying Payne & Dolan from commencing mineral excavation under the CUP. The circuit court denied the Severs' request for a temporary injunction and dismissed the complaint on the merits. 1 The Severs appeal.

STANDARD OF REVIEW

This case is before us on certiorari, and thus our review is limited to: (1) whether the board kept within its jurisdiction; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive, or unreasonable and represented its will and not its judgment; and (4) whether the evidence was such that it might reasonably make the order or determination in question. Snyder v. Waukesha County Zoning Bd. of Adjustment, 74 Wis.2d 468, 475, 247 N.W.2d 98, 102 (1976).

APPEAL TO BOARD OF ADJUSTMENT

The BOA refused to review the ZNR Committee's grant of the CUP, concluding that it lacked jurisdiction to hear CUP appeals. The BOA based its denial on § 10.255(2)(j), Dane County Ordinances, 2 which provides in relevant part:

Any person aggrieved by the grant or denial of a conditional use permit ... may appeal the decision of the Zoning Committee to the County Board. Such appeal must specify the grounds thereof in respect to the finding of the Zoning Committee, the reason why the appellant is aggrieved, and must be filed with the office of the Zoning Supervisor within 20 days of the final action for the Zoning Committee. The Zoning Administrator shall transmit such appeal to the County Clerk who shall file such appeal with the County Board. The County Board shall fix a reasonable time for the hearing of the appeal and give public notice thereof as well as due notice to the applicant and the appellant(s), and decide the same within a reasonable time. The action of the Zoning Committee shall be deemed just and equitable unless the County Board by three-fourths vote of supervisors present and voting reverses or modifies the action of the Zoning Committee. An appeal from a decision of the Committee shall be taken to the County Board. No other entity of county government has jurisdiction to hear any such appeal and the avenue of appeal provided for herein is intended to be the sole avenue of appeal from a decision of the Committee.

The Severs argue that this ordinance deviates from the appeal scheme required by § 59.99, STATS., which they contend vests the BOA, not the County Board, with the authority to review the ZNR Committee's decision. They cite § 59.99(4), which provides that "[a]ppeals to the [BOA] may be taken by any person aggrieved ... by any decision of the building inspector or other administrative officer," and § 59.99(7)(a), which provides that the BOA has the power "[t]o hear and decide appeals where it is alleged there is error in any order, requirement, decision or determination made by an administrative official in the enforcement of s. 59.97 or of any ordinance adopted pursuant thereto."

Resolution of this issue depends on our interpretation of § 59.99(1), STATS., which provides:

APPOINTMENT, POWER. The county board may provide for the appointment of a board of adjustment, and in the regulations and restrictions adopted pursuant to s. 59.97 may provide that such board of adjustment may, in appropriate cases and subject to appropriate conditions and safeguards, make special exceptions to the terms of the ordinance in harmony with its general purpose and intent and in accordance with general or specific rules therein contained. Nothing in this subsection shall preclude the granting of special exceptions by the county zoning agency designated under s. 59.97(2)(a) or the county board in accordance with regulations and restrictions adopted pursuant to s. 59.97 which were in effect on July 7, 1973 or adopted after that date.

(Emphasis added.) This issue presents a question of statutory construction, which we review de novo. See GTE North Inc. v. PSC, 176 Wis.2d 559, 564, 500 N.W.2d 284, 286 (1993).

The parties agree that § 59.99(1), STATS., allows a county zoning committee or county board to grant CUPs. 3 They disagree, however, as to whether the county can preempt application of § 59.99 by providing that the County Board must hear appeals of ZNR Committee decisions. In deciding this issue, we find State ex rel. Skelly Oil Co. v. Common Council, 58 Wis.2d 695, 207 N.W.2d 585 (1973), and Town of Hudson v. Hudson Town Bd. of Adjustment, 158 Wis.2d 263, 461 N.W.2d 827 (Ct.App.1990), instructive.

In Skelly Oil, Delafield's zoning ordinances provided that all conditional uses of buildings or premises must be approved by the plan commission. Skelly Oil, 58 Wis.2d at 699, 207 N.W.2d at 586. The ordinances also provided that any person aggrieved by a decision of the plan commission could appeal to the Delafield common council for review. Id.

Skelly Oil applied to the plan commission for a CUP to build a service station. Id. at 697, 207 N.W.2d 585, 207 N.W.2d at 585. Following a hearing, the plan commission rejected the request. Skelly appealed to the common council, which affirmed the decision. Id. at 698, 207 N.W.2d at 586. Skelly petitioned the circuit court for a writ of certiorari to review the common council's action, arguing that the common council is not, by statute, the correct body to review decisions of a plan commission. Id. The circuit court concluded that the acts of both the plan commission and the common council were in accordance with Wisconsin's statutes and...

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