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.”

Council is proper party in claim of illegality of zoning amendment

by Gary Taylor

Rude v. City of Mapleton Board of Adjustment
(Iowa Court of Appeals, May 29, 2009)

Claim that zoning amendment is inconsistent with comprehensive plan must be brought against city council within 30 days of council decision.

In 2006 Long Lines Wireless applied for a special use permit to construct a cell tower on land it intended to purchase in Mapleton.  A public hearing was held by the Mapleton board of adjustment, at which Ronald Rude voiced objections, stating that the city zoning ordinance did not permit cell towers.  Long Lines withdrew its application.  The planning and zoning commission later recommended text changes to the ordinance to accommodate cell towers, and in June 2007 the city council adopted those changes.  Long Lines resubmitted its application and in November 2007 the board of adjustment issued a special use permit.  Long Lines completed construction of its tower in December 2007.  In the same month, Rude filed a writ of certiorari claiming the board of adjustment’s actions in granting the special use permit were illegal.  The district court dismissed the claim, and Rude appealed.

Rude raised two objections: (1) that the zoning amendments were adopted by the city council without consideration of the city’s comprehensive plan, and (2) that the special use permit granted Long Lines permission to violate the setback and frontage provisions of the zoning ordinance.

The Court of Appeals dispensed with Rude’s first claim by noting that Rude did not raise the issue at the special use permit hearing before the board of adjustment.  “An issue must first be presented to the agency [in this case, the board of adjustment] in order to be preserved for appellate review.”  The court also noted that the lawsuit was brought against the board of adjustment, not the city council.  The council was the legislative body that amended the ordinance.  To attack the legality of the ordinance it would have been necessary for Rude to file his action within 30 days of the city council’s adoption of the zoning ordinance amendments.

On the second claim, the Court of Appeals found that Rude was misinterpreting the city’s zoning ordinance with regard to the application of the setback regulations.  The amendments adopted in June 2007 were specifically applicable to cell towers, and the setback provisions in those amendments clearly supplanted those to be applied to other uses.

The Court of Appeals affirmed the district court’s decision in favor of the city.





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