Declaratory judgment not appropriate avenue to appeal rezoning decision. Landowner gets second bite at appeal anyway.

By Gary Taylor

Dyersville Ready Mix, Inc., dba BARD Materials v. Iowa County (WI) Board of Supervisors and Iowa County Planning and Zoning Committee

Wisconsin Court of Appeals, October 20, 2022

In October 2019, BARD submitted an application to the Iowa County Planning and Zoning Committee, seeking to rezone its property from A-1 Agricultural to AB-1 Agri-Business to allow BARD to apply for a conditional use permit to convert its property from preserved agricultural land to a quarry.  The Town Board voted to oppose BARD’s rezoning application because it was inconsistent with its comprehensive plan. The Iowa County Planning and Zoning Committee then voted to recommend denial of the application for the same reason. The Iowa County Board ultimately voted to deny BARD’s application. [Note: this sequence of events doesn’t make sense to me, but I’m just repeating what I read].  BARD then commenced this action challenging the denial of its application. BARD labelled its action, and specifically sought, a declaratory judgment, arguing that, as a matter of law, it was entitled to the rezoning because it satisfied all of the criteria for rezoning its property. The Town moved for judgment on the pleadings, and the County moved to dismiss for failure to state a claim, arguing that declaratory judgment was not the appropriate remedy. They argued, among other things, that BARD’s exclusive remedy to challenge the denial of its rezoning application was by certiorari. The circuit court denied both motions. The parties then filed competing motions for summary judgment.  The circuit court granted summary judgment to BARD and issued a declaratory judgment that Bard is entitled to rezoning of its property as a matter of law. The Town and the County appealed.

The Town and County contended that certiorari is the exclusive remedy for review of a rezoning decision because rezoning is a legislative act and, according to the 2018 Wisconsin Supreme Court case of Voters with Facts v. City of Eau Claire, declaratory judgment is not a proper method for reviewing municipal legislative decisions.  BARD countered that “[t]ime and again, courts have entertained challenges to rezon[ing] decisions pleaded as claims for declaratory judgment” and provided a list of cases that it asserted adjudicated a rezoning decision through an action for declaratory judgment.  BARD also asserted that “general principles concerning review of legislative actions apply with ‘considerably lesser force’ to rezoning denials.” 

The Court of Appeals, however, was not persuaded.  “[BARD] does not explain why any of [the cases listed by BARD] control over the specific holding in Voters with Facts that certiorari review, rather than declaratory judgment, is the proper means to seek review of a municipal legislative determination. That is, BARD does not contend that any of the cases it cites addressed the legal question which was squarely addressed and answered in Voters with Facts.”  The Court noted with approval the observation in Voters with Facts that “declaratory relief is disfavored if there is a speedy, effective and adequate alternative remedy.” In this case, certiorari is available and therefore, is the exclusive method of review.

BARD argued alternatively that its complaint did, in fact, state a claim for certiorari review because it raised the questions, appropriate for such review, of whether the county’s actions were arbitrary or unreasonable.  The Court of Appeals did bite on this theory, concluding that BARD’s claims fit within the scope of, and therefore could be construed as a request for certiorari review.  The Court of Appeals remanded the case to circuit court because it was tried as a declaratory judgment action, and the record was therefore insufficient to enable certiorari review. 

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