Smerz v. Delafield Town Bd.
| Citation | 332 Wis.2d 189,2011 WI App 41,796 N.W.2d 852 |
| Decision Date | 16 February 2011 |
| Docket Number | No. 2010AP1186.,2010AP1186. |
| Parties | James SMERZ, Warren Hornik and Cheryl Hornik, Plaintiffs–Appellants,v.DELAFIELD TOWN BOARD, Defendant–Respondent. |
| Court | Court of Appeals of Wisconsin |
OPINION TEXT STARTS HERE
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of Robert A. Mich, Jr. of Law Offices of Kay & Andersen, LLC, Madison.On behalf of the defendant-respondent, the cause was submitted on the brief of John M. Bruce of Schober, Schober & Mitchell, S.C., New Berlin.Before BROWN, C.J., ANDERSON and REILLY, JJ.BROWN, C.J.
James Smerz, Warren Hornik, and Cheryl Hornik appeal from the dismissal of their lawsuit challenging the Delafield Town Board's discontinuation of two alley segments near their properties pursuant to Wis. Stat. § 66.1003(3) (2007–08).1 The Town argues that Smerz 2 has no standing to challenge its § 66.1003 order because his property does not “abut” the discontinued alley portions, as required by § 66.1003(4)(d). Smerz contends that he does have standing under § 66.1003 and argues that the real issue is that the Town was required to proceed under Wis. Stat. ch. 236, which grants counties (but not towns) authority to vacate streets and alleys located in recorded plats. The Town responds that ch. 236 is one, but not the exclusive, avenue for action. We agree with the Town on both points and affirm. Although the parties each make several other arguments, Smerz's lack of standing makes it unnecessary to address them.
¶ 2 On April 27, 2008, several property owners in Delafield wrote a letter petitioning the Town to discontinue two portions of unpaved alley. The letter was signed by all of the property owners with land adjacent to the alley portions they proposed to vacate. On June 24, 2008, the Town granted their petition and ordered the alley segments vacated as requested. The order listed Wis. Stat. § 66.1003 as its source of authority.
¶ 3 On May 27, 2009, Smerz filed a declaratory judgment action alleging that the Town Board had wrongfully denied (by not responding to) his claim that the unpaved alleys should not be vacated. In a motion for summary judgment, he claimed that because the alleys were located within a recorded plat, they were subject to Wis. Stat. ch. 236, which does not give town boards authority to act. The Town responded by saying that Wis. Stat. § 66.1003, which does give town boards the authority to act, represents an alternative to ch. 236. It then filed its own summary judgment motion.
¶ 4 At a hearing on January 20, 2010, the trial court asked both parties to address the issue of standing to challenge the order. After each party did so, the trial court granted summary judgment in favor of the Town, stating that it had the authority to act under Wis. Stat. § 66.1003 and that Smerz did not have standing to challenge its decision. Smerz appeals.
¶ 5 Our standard of review for summary judgment is well known. Using the same methodology as the trial court, we review its decision de novo. Green Spring Farms v. Kersten, 136 Wis.2d 304, 317, 401 N.W.2d 816 (1987). Summary judgment is only appropriate if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Id. at 315, 401 N.W.2d 816; Wis. Stat. § 802.08(2). In this case, the relevant facts-the location of the discontinued alleys and the properties of the appellants-are not in dispute. So, we deal only with whether the Town was entitled to judgment as a matter of law. We will address the issue of standing first, and then address whether the Town was obligated to proceed under Wis. Stat. ch. 236 rather than Wis. Stat. § 66.1003.
¶ 6 Our supreme court has outlined a two-part test for standing: first, whether the challenged action caused direct injury to the petitioner's interest and second, whether the interest affected was one recognized by law. See Wisconsin's Envtl. Decade, Inc. v. Pub. Serv. Comm'n, 69 Wis.2d 1, 10, 230 N.W.2d 243 (1975). When standing to assert a claim for violation of a statute is in question, the court determines whether the party was injured and whether the asserted claim is within the zone of interests protected by the statute. Cook v. Public Storage, Inc., 2008 WI App 155, ¶ 30, 314 Wis.2d 426, 761 N.W.2d 645. Smerz asserts that he has standing based on his use of the vacated alley segments as extra parking and storage. While this arguably meets the first prong of the test, it falls short on the second.
¶ 7 Since we hold that Wis. Stat. § 66.1003 is applicable, we need only address whether Smerz's injury is within the zone of interests protected by that statute.3 Section 66.1003(4)(d) provides:
[796 N.W.2d 855 , 332 Wis.2d 194]
No discontinuance of an unpaved alley shall be ordered if a written objection ... is filed ... by the owner of one parcel of land that abuts the portion of the alley to be discontinued and if the alley provides the only access to off-street parking for the parcel of land owned by the objector. (Emphasis added.)Even though he does not assert that any of the objectors' land abuts the discontinued segments, Smerz argues that he nonetheless has standing because of a single sentence in § 66.1003(3): “The beginning and ending of an unpaved alley shall be considered to be within the block in which it is located.” He states that “[b]ecause Appellants live on the same block of the alley at issue, they have standing to challenge the Order.” We find this argument absurd. The legislature's choice to define the dimensions of an entire unpaved alley in a certain way does not change the plain meaning of the phrase “portion of the alley to be discontinued” when it appears elsewhere in the statute. Section 66.1003(4)(d) clearly gives standing to people whose property abuts the discontinued portions of the alleys, not every landowner on the block.
¶ 8 We note that Wis. Stat. § 66.1003(2) & (3) set up a separate, more stringent, standard for the discontinuation of “public ways,” which are defined as paved alleys and other streets, versus unpaved alleys. See § 66.1003(1) (defining “public way”); compare § 66.1003(2) & (4)(c) () with § 66.1003(3) & (4)(d) (). Indeed, if this were a “public way” rather than an unpaved alley, Smerz might have standing under § 66.1003(4)(c), which provides that a public way will not be discontinued if more than one-third of landowners within 2650 feet of the public way to be discontinued object. The fact that a different subsection of the statute recognizes an interest similar to Smerz's, while the statute pertaining to unpaved alleys does not, strengthens our view that Smerz's use of the unpaved alleys near him as space for extra parking is not an injury that is recognized by the statute.4
¶ 9 As mentioned above, Smerz also argues that standing under Wis. Stat. § 66.1003 is irrelevant because the Town was required to adhere to Wis. Stat. ch. 236, which would require the county to act. To address this argument, we must interpret § 66.1003 in conjunction with ch. 236. Statutory interpretation “begins with the language of the statute.” State ex rel. Kalal v. Circuit Court for Dane Cnty., 2004 WI 58, ¶ 45, 271 Wis.2d 633, 681 N.W.2d 110 (citation omitted). If the meaning of the statute is plain, we ordinarily stop our inquiry and apply that meaning. Id. The context in which a statute appears and the history of the statute are relevant to its plain meaning, as is prior case law interpreting the statute.
[796 N.W.2d 856 , 332 Wis.2d 196]
Berkos v. Shipwreck Bay Condo. Ass'n, 2008 WI App 122, ¶ 8, 313 Wis.2d 609, 758 N.W.2d 215. Unless the statute is ambiguous, we generally do not consult extrinsic sources for interpretation. Id., ¶ 9.
¶ 10 Wisconsin Stat. § 66.1003(3) states that a “town board may discontinue all or part of an unpaved alley” when certain conditions are met. (Emphasis added.) Then, there are two subsections of Wis. Stat. ch. 236 that Smerz argues may be used to vacate the alleys in question. The first is Wis. Stat. § 236.43, which states that courts “ may vacate streets, roads or other public ways on a plat” if certain conditions are met. (Emphasis added.) The second is Wis. Stat. § 236.445, which states that county boards “ may alter or discontinue any ... alley in any recorded plat in any town in such county, not within any city or village” following the procedure laid out in § 66.1003. (Emphasis added.) As the Town points out, all three grants of authority— §§ 236.43, 236.445, and 66.1003—use the word “may,” which strongly implies that none of them are meant to be the exclusive means to discontinue an alley.
¶ 11 Smerz argues that because Wis. Stat. ch. 236 deals with streets and alleys in recorded plats, it is more specific than Wis. Stat. § 66.1003(3), which applies to any unpaved alley located within a town. He cites to State ex rel. Welch v. Chatterton, 239 Wis. 523, 300 N.W. 922 (1941), for the proposition that “when a street or road is discontinued, the more specific statute must be employed because arguably two applicable statutes could apply.” Indeed, in Chatterton, our supreme court held that one statute pertaining to the discontinuation of streets was more specific than another, stating that “[i]t is apparent that the legislature contemplated the existence of a village street ‘pure and simple,’ as in a class by itself and roads extending over boundary lines as in another class.” Id. at 527, 300 N.W. 922. What Smerz seems to be saying is that in ch. 236, the legislature created a separate class of streets in towns that are located in platted subdivisions versus streets in towns that are not within platted subdivisions.
¶ 12 We disagree. First, Chatterton dealt with a different issue—whether a village could discontinue a portion...
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