State ex rel. Schleck v. Zoning Bd. of Appeals

• Decision Date: 15 December 1948
• Citation: 35 N.W.2d 312,254 Wis. 42
• Parties: STATE ex rel. SCHLECK et al. v. ZONING BOARD OF APPEALS, CITY OF MADISON, et al.
• Court: Wisconsin Supreme Court

254 Wis. 42

35 N.W.2d 312

STATE ex rel. SCHLECK et al.

v.ZONING BOARD OF APPEALS, CITY OF MADISON, et al.

Supreme Court of Wisconsin.

Dec. 15, 1948.

Appeal from a judgment of the Circuit Court for Dane County; Herman W. Sachtjen, Judge.

Certiorari by the State, on relation of Carl Schleck and another, against Zoning Board of Appeals, City of Madison, and others, to review a decision of the Zoning Board of Appeals denying a building permit. From a judgment affirming the action of the Zoning Board of Appeals, relators appeal.-[By Editorial Staff.]

Judgment affirmed.

Certiorari. Relators Carl Schleck and Leo Schleck commenced this action on September 23, 1947, to review the decision of the Zoning Board of Appeals, made September 10, 1947. Judgment was entered January 14, 1948, affirming the action of the Zoning Board of Appeals, which denied relators a building permit to construct a residence on a lot in the city of Madison. The proceeding is under the provisions of the zoning ordinance of the city of Madison adopted November 23, 1945 pursuant to the provisions of sec. 62.23, sub-sec. 7(e) paragraphs 10 to and including paragraph 15, Wis.Stats. A writ of certiorari was issued. The Board of Appeals made its return. On motion of the relators additional testimony was taken and upon consideration of the return and the testimony the circuit court affirmed the action of the Zoning Board of Appeals and from the judgment affirming the action of the Zoning Board of Appeals the relators appeal to this court. Further facts will be stated in the opinion. Aberg, Bell, Blake & Conrad, of Madison, for appellants.

Harold E. Hanson, City Atty., of Madison, for respondents.

ROSENBERRY, Chief Justice.

The first question presented to this court is whether it has jurisdiction of the issues raised on the appeal.

The original application for a building permit for the lot in question was dated February 14, 1946, and denied for the reason that the application failed to comply with the zoning ordinance back yard requirements. The Zoning Board of Appeals on appeal from the refusal of the building commissioner to grant the permit on March 8, 1946, affirmed the action of the building commissioner.

On January 8, 1947, relators appealed a second time from the order of February 14, 1946, on which appeal the Board of Appeals affirmed the action of the building commissioner on February 11, 1947. The relators filed a new application for building permit on June 11, 1947, which was taken up directly by the Zoning Board of Appeals. On July 11th further action on the application was deferred to the next meeting of the appeals board but the following entry appears in the minutes of the board: ‘This case has been before the Board for several months, but this hearing is on the basis of a new application and new evidence.’

The question at issue on each of the various applications and appeals was whether the relators should be granted a permit to erect a building on the same premises.

It is contended here that the denial of the first application for building permit for the lot in question and its affirmance by the Board of Appeals was res adjudicata, and the appeal in this case not having been taken within thirty days after the filing of the first decision by the Zoning Board of Appeals on February 14, 1946, that no jurisdiction was conferred upon the circuit court by the appeal and hence this court has none.

The sole ground upon which this contention rests is a decision in the case of Canzano v. Hanley, 188 Misc. 167, 66 N.Y.S.2d 709, which so far as we are able to see has no application in this case. The application in this case was not an application for review of a ruling made on a prior application, but a new and separate proceeding, and was so designated by the Board of Appeals. Par. 10 of sec. 62.23(7)(e) Stats., provides that: ‘Any person or persons, * * * may present to a court of record a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality. Such petition shall be presented to the court within 30 days after the filing of the decision in the office of the board of appeals.’

The relators proceeded strictly in accordance with this statute, and the position of the respondent is not well taken. The doctrine of res adjudicata has no application to the exercise of the power of an administrative body. Duel v.State Farm Mutual Automobile Ins. Co., 1942, 240 Wis. 161, 1 N.W.2d 887,2 N.W.2d 871.

So that there may be no mistake we point out again that when an administrative body exercises legislative power, authority cannot be conferred upon the court on appeal or review to exercise the discretion conferred upon the administrative agency. It may only affirm or reverse the order of the agency. Appleton Chair Corp. v. United Brotherhood of Carpenters and Joiners etc., 1941, 239 Wis. 337, 1 N.W.2d 188.

Upon the merits the facts in this case are not in serious dispute. The lot is in a class ‘A’ residence district and the reason for the denial of the application for a permit was based primarily on the ground that the building when erected would not conform to the rear yard requirements of sec. 16.06(V) (A) and other requirements of the zoning ordinances of the City of Madison. The situation is best disclosed by reference to Exhibits B and C, reproduced herewith.

IMAGE

Sec. 16.06(V)(A) of the ordinance of the City of Madison provides: ‘There shall be a rear yard on every lot. The least depth of any rear yard shall be forty (40) feet. Unenclosed groundstory porches or projections not more than one story high may extend ten (10) feet into a required rear yard.’

Sec. 16.16(IV)(A)(1) provides: ‘For each foot by which a lot existing and of record at the time of enactment of this ordinance is less than one hundred twenty (120) feet deep, three (3) inches may be deducted from the required least depth of the rear yard; provided, however, that no required rear yard shall be less than ten (10) feet deep in any case.’

The relators concede that the location of the proposed building does not conform to the requirements of these ordinances. They further contend, however, that under the provisions of sec. 16.18(V)(B)(3) the board has power to authorize a variance and erred in not doing so. That section, so far as material, provides as follows: ‘Where, by reason of exceptional narrowness, shallowness, or shape of a specific piece of property at the time of the enactment of this ordinance or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any provision of this ordinance would result in peculiar and exceptional practical difficulties or exceptional and undue hardship upon the owner of such property, the Board shall have the power to authorize, upon an appeal relating to such property, a variance from such strict application so as to relieve such difficulties or hardship, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of this ordinance.’

Upon the last hearing the appeal board disposed of the matter by reference to the decision rendered by it on March 8, 1946, in response to the first application. Among other things the appeal board stated: ‘It further appears that appellants desire to erect a new house in L shape located on that rear portion of...