City not proper party to certiorari action against zoning board of appeals

by Gary Taylor

Acevedo v. The City of Kenosha and the Kenosha City Zoning Board of Appeals
(Wisconsin Court of Appeals, December 22, 2010)

In March 2007, Acevedo began operating a child day care center in the lower unit of a two-family residential dwelling zoned RG-1 General Residential District in the City of Kenosha. The property is owned by Acevedo’s mother; however, neither Acevedo nor her mother reside at the property.   In April 2009, Acevedo sought to obtain a license from the state to operate a second child day care center in the upper unit of the property.  A licensing supervisor from the Wisconsin Department of Children and Families (WDCF), contacted the City of Kenosha Zoning Coordinator, with concerns about licensing another child care center at the same residential property.  This inquiry for the first time alerted the City of Kenosha Department of Neighborhood Services and Inspections that Acevedo was seeking a license from WDCF to operate a child day care center in the upper unit of the property.  The zoning administrator informed Acevedo that the child day care center in the lower unit and the proposed child day care center in the upper unit violated the City of Kenosha zoning ordinance.  After informing Acevedo, the city also notified the property owner (Acevedo’s mother) of the zoning ordinance violation and included a directive to cease and desist all day care activities at the property by May 30, 2009.

In July 2009 Acevedo filed a request for an administrative appeal with the City of Kenosha Zoning Board of Appeals.  The matter came before the Board for an evidentiary hearing on August 13, 2009.  After testimony and evidence was received, the Board affirmed the interpretation of the City’s zoning ordinance by the zoning, and ordered that Acevedo cease and desist all day care operations at the property and remove a ground sign on the property.  On September 23, 2009, Acevedo filed a certiorari action in Kenosha county circuit court which initially named only the City as defendant.  The City moved to dismiss Acevedo’s lawsuit on the basis that the action failed to state a claim for which relief could be granted; specifically, that Acevedo’s claim should have been against the Zoning Board of Appeals, which, the City contended, is a separate body politic.  The City further asserted that the City was not a proper party to the action.  After the City filed its motion to dismiss, Acevedo amended her complaint to add the Board as a defendant.  The circuit court granted the City’s motion to dismiss.  Acevedo appealed the circuit court’s order to the Wisconsin Court of Appeals. 

The issue on appeal was whether the City is the proper party for a writ of certiorari challenging a decision of the Board.  The City contended that Acevedo’s request for a writ of certiorari, which by law is a request to compel action from a public body, cannot in fact compel any action from the City; i.e., that the City has no authority over the actions of the Zoning Board of Appeals.  After reviewing several prior cases raised by Acevedo, and the language of Wis. Stat. §§ 62.23(7)(e)10 and 68.13(1) the Court of Appeals sided with the city.  The language of § 62.23 “clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision.”  Likewise, § 68.13(1) conveys that the decision maker, i.e., the board, is the properly named party on certification, noting “why else would the court be instructed to ‘remand to the decision maker’?”

The Court of Appeals found that its interpretation of these statutes “is in harmony with the rule that the writ of certiorari must go to the board or body whose acts are to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or the persons composing the board.”

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