Walworth Homes, LLC v. Walworth Cnty.

• Decision Date: 18 April 2012
• Docket Number: Nos. 2011AP1471,2011AP1472.,s. 2011AP1471
• Parties: WALWORTH HOMES, LLC, Plaintiff–Appellant, v. WALWORTH COUNTY and Walworth County Board of Adjustment, Defendants–Respondents. Colton Meisinger Trust, Daniel Meisinger Trust, Kent J. Harmon Trust, Margaret Taylor Harmon Trust, James William Harmon Trust, Holland M. Shodeen Trust, Wyatt A. Shodeen Trust, Craig A. Shodeen, Trustee, Maegan B. Shodeen Trust, Samantha N. Shodeen Trust And Hunter W. Shodeen Trust, Eric M. Shodeen, Trustee, Plaintiffs–Appellants, v. Walworth County and Walworth County Board of Adjustment, Defendants–Respondents.
• Court: Wisconsin Court of Appeals

341 Wis.2d 491
815 N.W.2d 407
2012 WI App 62

WALWORTH HOMES, LLC, Plaintiff–Appellant,
v.
WALWORTH COUNTY and Walworth County Board of Adjustment, Defendants–Respondents.
Colton Meisinger Trust, Daniel Meisinger Trust, Kent J. Harmon Trust, Margaret Taylor Harmon Trust, James William Harmon Trust, Holland M. Shodeen Trust, Wyatt A. Shodeen Trust, Craig A. Shodeen, Trustee, Maegan B. Shodeen Trust, Samantha N. Shodeen Trust And Hunter W. Shodeen Trust, Eric M. Shodeen, Trustee, Plaintiffs–Appellants,
v.
Walworth County and Walworth County Board of Adjustment, Defendants–Respondents.

Nos. 2011AP1471, 2011AP1472.

Court of Appeals of Wisconsin.

April 18, 2012.

Appeal from judgments of the circuit court for Walworth County: John R. Race, Judge. Affirmed.
Before BROWN, C.J., REILLY and GUNDRUM, JJ.¶ 1PER CURIAM.

In these consolidated cases, Walworth Homes, LLC, and the Colton Meisinger Trust, et al. (collectively, “Walworth Homes”), appeal judgments affirming a Walworth County Board of Adjustment decision Walworth Homes found unpalatable. We reject Walworth Homes' claim that the Board proceeded on an incorrect theory of law, acted in excess of its authority or rendered a decision that was arbitrary, oppressive or unreasonable. We affirm.

¶ 2 The entities that comprise Walworth Homes own real estate in the Town of Delavan. The buildings currently on the parcels are deemed “existing substandard structures” because they predate the current zoning ordinance and do not comply with the current ordinance's setback restrictions. The existing buildings are “vacant and dilapidated.” The Town wants the buildings removed. Walworth Homes also wants to raze the existing buildings and eventually to reconstruct them in their same locations and footprints so as to use the “grandfathered” setback lines.

¶ 3 Walworth Homes indicated their desire to the Walworth County Land Use & Resource Management Office (“Land Use Office”) and requested an opinion that would explain the applicable restrictions and regulations so that the owners could “determine [the] feasibility of rebuilding a new commercial building on the property.” The Zoning Administrator, on behalf of the Land Use Office, advised Walworth Homes that their right to reconstruct or replace a substandard structure is contingent on obtaining a zoning permit before tearing down the existing one and that the zoning permit would expire in twenty-four months.

¶ 4 The answer did not sit well with Walworth Homes and they appealed to the Board. Walworth Homes argued that nowhere in the ordinance does it expressly provide that a landowner's right to use established setback lines expires twenty-four months after the substandard structure is removed. The Zoning Administrator testified on behalf of the Land Use Office. Finding the Land Use Office's interpretation of the ordinance to be valid, the Board upheld it.

¶ 5 Walworth Homes then filed a two-claim complaint in the circuit court. One claim requested certiorari review; the second sought a declaratory judgment that the Board erroneously interpreted the ordinance. The court set a certiorari briefing schedule, intending to decide the case on the record and briefs. Walworth Homes objected, arguing that the briefing schedule was premature because they should be allowed to conduct discovery. The court declined to hear Walworth Homes' motion for an order to vacate the briefing schedule.

¶ 6 The Board moved for a protective order limiting the scope of the record as prescribed by Wis. Stat. § 59.694(10) (2009–10) ¹ and common-law certiorari procedures, on the basis that certiorari review provided Walworth Homes' exclusive remedy. Walworth Homes opposed the motion, contending they were entitled to discovery on the declaratory judgment claim. The court granted the Board's motion for a protective order and set a new briefing schedule. Limiting its review to the administrative record and the parties' briefs, the court sustained the Board's decision. Walworth Homes appeals.

¶ 7 On appeal we review the Board's decision, not the circuit court's. Roberts v. Manitowoc County Bd. of Adjustment, 2006 WI App 169, ¶ 10, 295 Wis.2d 522, 721 N.W.2d 499.² Our inquiry on certiorari review is limited to whether the Board kept within its jurisdiction; whether it acted according to a correct theory of law; whether its action was arbitrary, oppressive or unreasonable and represented its will rather than its judgment; and whether its determination was reasonable based on the evidence before it. Mills v. Vilas County Bd. of Adjustments, 2003 WI App 66, ¶ 11, 261 Wis.2d 598, 660 N.W.2d 705. The Board's decision is presumptively correct and valid. State ex rel. Ziervogel v. Washington County Bd. of Adjustment, 2004 WI 23, ¶ 13, 269 Wis.2d 549, 676 N.W.2d 401. As we may not substitute our discretion for that committed to the Board by the legislature, we will not disturb the Board's findings if any reasonable view of the evidence sustains them. Id.

¶ 8 The ordinance at issue is the Walworth County Shoreland Zoning Ordinance. See Walworth County, Wis., Ordinances ch. 74, art. III (2002). Walworth Homes argues that the Board did not act according to law because its interpretation runs contrary to the ordinance's plain language.

¶ 9 The rules governing interpretation of ordinances and of statutes are the same and present a question of law we review independently. State v. Ozaukee Cnty. Bd. of Adjustment, 152 Wis.2d 552, 559, 449 N.W.2d 47 (Ct.App.1989). Our interpretation begins with the ordinance's plain language. See Bruno v. Milwaukee County, 2003 WI 28, ¶ 7, 260...