Shannon & Riordan v. Board of Zoning Appeals of Milwaukee, 89-0466

• Decision Date: 20 December 1989
• Docket Number: No. 89-0466,89-0466
• Citation: 153 Wis.2d 713,451 N.W.2d 479
• Parties: SHANNON & RIORDAN, d/b/a Shannon Riordan Properties, Petitioner-Appellant, d v. BOARD OF ZONING APPEALS OF MILWAUKEE, Respondent.
• Court: Wisconsin Court of Appeals

Page 479

451 N.W.2d 479

153 Wis.2d 713

SHANNON & RIORDAN, d/b/a Shannon Riordan Properties Petitioner-Appellant, ^d v. BOARD OF ZONING APPEALS OF MILWAUKEE, Respondent.

No. 89-0466.

Court of Appeals of Wisconsin.

Submitted on Briefs Aug. 1, 1989.

Opinion Released Dec. 20, 1989.

Opinion Filed Dec. 20, 1989.

Law Office of Timothy Riordan by Timothy Riordan, Milwaukee, on the briefs, for petitioner-appellant.

Grant F. Langley, City Atty. by David J. Stanosz, Asst. City Atty., Milwaukee, on the briefs, for respondent.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

MOSER, Presiding Judge.

Timothy Riordan (Riordan) and Jan Shannon (Shannon) appeal from the trial court's order denying certiorari of an adverse Milwaukee Board of Zoning Appeals (BOZA) hearing. BOZA denied a variance for their three properties to be used as Community Based Residential Facilities (CBRFs). In denying the variance, BOZA relied on sec. 295-14-1 Milwaukee Code of Ordinances, which draws its authority from sec. 62.23(7)(i), Stats. The statute limits the placement of a CBRF within 2,500 feet of any other such facility of the same type. Sec. 62.23(7)(i)(1).

Apparently as a result of the demolition of the Randolph Hotel in downtown Milwaukee, Riordan and Shannon bought and refurbished four residences. Riordan and Shannon purchased the properties to provide housing for those people deprived of housing because of the demolition of the Randolph Hotel and other similarly situated people. What started out as an attempt to provide housing resulted in them also assisting their tenants with medication, money management, health and personal care.

In the spring of 1986, the city of Milwaukee building inspector informed Riordan and Shannon that these properties had to be licensed as either rooming houses or as CBRFs. Because of the high level of care given to the tenants, the Wisconsin Department of Health and Social Services, Division of Community Services (DHSS/DCS) determined that Riordan and Shannon had to seek licensure for these residences as CBRFs under sec. 50.03, Stats. This required Riordan and Shannon to obtain a variance from the 2,500 foot limitation to obtain the licenses subject to the proscriptions of sec. 62.23(7)(i), Stats., and Milwaukee ordinance 295-14-1.

Riordan and Shannon initially petitioned BOZA to obtain variances for the four properties to be used as rooming houses, but later amended the request so that the properties could be used as CBRFs. BOZA held a noticed hearing on all four properties on December 3, 1987. On January 6, 1988, the DHSS/DCS forwarded a letter to BOZA noting that Riordan and Shannon had applied for a CBRF license for all four properties and requested a copy of its variance decision. In separate decisions dated March 11, 1988, BOZA granted the CBRF variance for one of the properties and denied the variances for the remaining three properties. The pertinent parts of the formal denials for the properties read as follows:

The above matter came on for hearing before the Board on December 3, 1987, and executive session February 4, 1988, on appeal from a denial of the Commissioner of Building Inspection of the City of Milwaukee dated June 26, 1986, revised October 2, and 27, 1987, of a request to occupy the entire above subject premises as a Community Based Residential Facility for sixteen (16) residents.

....

Section 295-14-1

Community living arrangements such as community based residential facilities may not be located within 2,500 feet of each other.

There is one existing and three proposed community living arrangements located within 2,500 feet of the subject premises.

Appearances: H.F. Schweikart, Planning Administration

George Kuetemeyer, Building Inspection Dept.

Timothy Riordan

Jan Riordan Shannon

The Board of Zoning Appeals, after receiving a report from the City Plan Commission, and having heard the evidence of the applicant, interested parties, and the City of Milwaukee, and being fully advised in the premises,

....

The Board finds that the interpretation of the Milwaukee Code of Ordinances by the Commissioner of Building Inspection is correct in that the use requested is a community living arrangement which is within 2500 feet of another such facility; and

Having found that the use requested was not necessary for the public convenience at this location, since there is an existing community living arrangement within 2500 feet of the subject premises, and

It was determined that the use requested would be an overintensification of the proposed use in this area, thereby having an adverse impact on the neighborhood; and it was further determined that there was no showing that the use was consistent with the spirit, purpose and intent of the ordinance;

Having further found that the use requested will have an adverse impact on the abutting properties and the neighborhood and that there was no showing that the use was necessary for the public convenience at this location; and further that the site contains two principal buildings, (a duplex with a rear cottage) and would overintensify the land use;

IT IS ORDERED:

That upon motion duly made, seconded and carried, a request for a special use exception and variance to use the duplex on the front of the lot on the above subject premises as a community based residential facility for sixteen (16) residents is denied. ¹

As a result of the variance denials, the DHSS/DCS advised Riordan and Shannon that it would take no further action on their CBRF license applications for those three properties.

Pursuant to the authority of secs. 62.23(7)(e)10, (i) and 753.04, Stats., Riordan and Shannon commenced this certiorari review in the trial court. They argued that BOZA's application of sec. 295-14-1 of the Milwaukee Code of Ordinances was so arbitrary and capricious that it amounted to an unconstitutional denial of equal protection and due process and that sec. 62.23(7)(i) is unconstitutional.

The trial court decided the matter on briefs. It first noted that BOZA's findings of fact indicated that there was an existing CBRF within 2,500 feet of the Riordan and Shannon buildings. ² It further noted that BOZA found that the granting of the variance would adversely impact on the abutting properties and overintensify the land use, and thus the variances requested were not necessary for the public convenience. The trial court held that BOZA was faced with a discretionary decision when it denied the variance. It therefore held when a determination is within the scope of the powers conferred upon BOZA, and it is not arbitrary or capricious, there is no violation of the property owner's constitutional rights. The court held that BOZA's decision was not arbitrary or capricious, and it was supported by the record. The court further determined that the evidence clearly showed that there was an existing CBRF within 2,500 feet of the petitioners' properties, and it was proper for BOZA to deny the variances since they would violate the statutory 2,500 foot limitation on the placement of CBRFs.

In conclusion, the court held that the statute ³ and the Milwaukee ordinance ⁴ were not unconstitutional and did not infringe on the petitioners' constitutional rights. The trial court specifically held that there was no denial of constitutional equal protection because there was no evidence in the record that the petitioners were members of a suspect class or that they had a fundamental right to a variance. Since the legislative purpose of the 2,500 foot limitation on the placement of CBRFs is to avoid overintensification of these housing arrangements in any one area, the court held that this type of classification was a rational method adopted to preserve and protect communities. Thus, the court affirmed BOZA's decision.

On this appeal, Riordan and Shannon argue that BOZA's denial of the variances allowing their properties to be used as CBRFs ⁵ was arbitrary and capricious. Thus, the appellants argue that BOZA's decision amounted to an unconstitutional denial of equal protection or due process. Appellants also argue that BOZA's decision unconstitutionally denied them of their right to freely exercise their religious beliefs and to worship.

DUE PROCESS AND EQUAL PROTECTION

The appellants argue that they were denied constitutional due process and equal protection because BOZA's denial of their variance request was arbitrary, capricious and unreasonable. The appellants contend that the state statute and the ordinance do not establish a rational relationship with a CBRF, which requires "personal care" in the form of "assistance with the activities of daily living, such as eating, dressing, bathing and ambulation." ⁶ Further, the effect of BOZA's denial would require the appellants to operate the three properties under the CBRF exemption for a building in which room and board are provided. ⁷ They further argue that the statutory spatial restrictions under secs. 50.03 and 62.23(7)(i)1, Stats., forces this type of housing to be limited to the poorer areas of the community and not to be disbursed throughout the community.

Parties aggrieved by a denial of a zoning variance by a board of zoning appeals seek their relief by commencing certiorari. A court may reverse or affirm, wholly or partly, or may modify the agency decision brought for review. ⁸ A review of an agency decision is limited to: "(1) whether the board acted within its jurisdiction and authority; (2) whether it proceeded on a correct theory of law; (3) whether its action was arbitrary, oppressive or unreasonable; and (4) whether the evidence was such that the board might reasonably make the determination it did." ⁹

Zoning statutes and ordinances are presumed to be valid and constitutional. ¹⁰ One who attacks them must prove unconstitutionality beyond a reasonable doubt. ¹¹ Abuse of the legislative discretion on equal protection grounds must be proved beyond a reasonable doubt. ¹² Before such zoning...