Oct. 25, 2022 – A person opposing an application for re-zoning has no right to an impartial decision maker, the Wisconsin Court of Appeals has ruled.

In Miller v. Zoning Board of Appeals of the Village of Lyndon Station, 2021AP1764 (Aug. 25, 2022), the Court of Appeals District IV held that the common law “duty of disqualification” does not apply to re-zoning decisions because the duty applies only in quasi-judicial proceedings, and re-zoning decisions are legislative proceedings.

Small Residential Lot

Larry and Kristi Whaley owned a 1.87-acre vacant lot in the Village of Lyndon Station. Under the village’s zoning ordinance, the Whaleys were not allowed to commercially develop their lot because it was zoned G1-Residental.

The Whaleys sold the lot, with the sale contingent upon obtaining a re-zone that would allow the lot to be commercially developed. The Whaleys submitted a re-zoning application to the village board.

Kristi Whaley’s mother, Jan Miller, was a village board trustee at the time. Trustee Miller also sat on the village’s planning commission.

By a 3-1 vote, the commission recommended that the village board grant the Whaleys’ re-zoning application. Trustee Miller supplied one of the three ‘Yes’ votes.

Village Board Approves Re-Zone

When the village board held a public hearing on the plan commission’s recommendation, Thomas Miller spoke in opposition.

Miller owned Miller’s General Store and three rental properties near the Whaleys’ lot.  Miller said he was worried that a chain store competitor would buy the Whaleys’ lot and drive him out of business.

The village board voted 2-1 to approve the Whaleys’ re-zoning application.

Appeals Board Affirms

Miller appealed to the village’s zoning board of appeals (ZAB).

He argued that the Whaleys’ application presented Trustee Miller with a conflict of interest. The ZAB voted 3-2 to uphold the village board’s approval of the Whaleys’ re-zoning application.

Miller sought certiorari review in Juneau County Circuit Court, under Wis. Stat. section 62.23(7)(e)(10). He argued that:

•          by voting on the Whaleys’ application, Trustee Miller violated section 19. 59(1)(c);

•          Trustee Miller violated his constitutional right to a fair and impartial hearing by voting despite her conflict of interest; and

•          section 19.59(1)(d) was unconstitutional, to the extent it allowed Trustee Miller to vote on the Whaleys’ application.

The circuit court reversed the decision of the ZAB, ruling that Trustee Miller’s participation in the village board’s proceedings violated Miller’s constitutional right to a fair and impartial hearing.

The ZAB appealed, and the Whaleys intervened in the case.

Re-Zoning Is Legislative Act

The Whaleys argued that the village board’s adoption of the resolution approving the rezoning was a legislative act and therefore not subject to judicial review.

Writing for a three-judge panel, Judge Rachel Graham explained that each re-zoning decision that a municipality makes is in effect an amendment to its zoning ordinance.

“A village ‘zones’ by adopting a comprehensive plan and zoning ordinance,” Graham wrote. “Zoning ordinances are legislation; they create prospective rules of general applicability rather than implementing preexisting rules with respect to historic facts. Zoning is therefore considered to be a legislative act.”

Graham pointed out that under Wisconsin Court of Appeals precedent, when a municipality grants a zoning variance or determines that a land use is non-conforming under a zoning ordinance, it acts in a quasi-judicial manner. But a re-zone is different, she explained.

“Although re-zoning a single parcel is a fact-intensive, individualized determination, it remains that re-zoning involves amending the zoning ordinance, and a village’s enactment of an amendment to a zoning ordinance is legislation whether it affects multiple parcels and property owners or only one,” Judge Graham wrote.

Courts May Review Local Legislative Acts

The Whaleys argued that a court lacks jurisdiction to review the ZAB’s decision because that decision was a legislative act.

But Graham wrote that under long-established precedent, “certiorari review is the appropriate mechanism for a court to test the validity of a decision rendered by local governments, whether that decision is characterized as judicial or legislative in nature.”

She also pointed out that Miller’s arguments were within the scope of judicial review for local legislative decisions established by court of appeals precedent.

One of four inquiries allowed a court in such a review, Judge Graham explained, was whether the local legislative body acted according to law, and Miller’s assertion that the Trustee Miller had violated section 19.59(1)(c) was properly within that inquiry.

Miller Didn’t Meet Burden

But Miller had not carried his burden to demonstrate that the ZAB had committed a legal error, Judge Graham concluded.

Graham pointed out that Trustee Miller had not violated section 19.59, the conflict of interest statute, because section 19.59(1)(d) specifies that section 19.59(1)(c) “does not … prohibit a local public official from taking official action with respect to any proposal to modify a county or municipal ordinance.”

Judge Graham noted that Miller had not argued on appeal that section 19.59(1)(d) was unconstitutional.

“This alone forecloses Miller’s due process argument,” Graham wrote.

Miller argued that a Wisconsin Supreme Court case, Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.23 842 (1993), holding that the common law may require a decision maker’s refusal even where no statute requires recusal, applied to his case.

But Judge Graham reasoned that Marris didn’t apply because it involved a decision as to whether a parcel had retained its legal nonconforming use status.

“In [that] case, the nature of the zoning board of appeals’ decision and the characteristics of the hearing required impartiality,” Graham wrote.

“The decision … involved application of the zoning ordinance to a particular set of facts and circumstances. To render a decision, the zoning board of appeals would have to examine the activities of a particular property owner, engage in fact finding, and then make a decision based on pre-established criteria.”

None of the cases cited in the Marris decision, Judge Graham pointed out, recognized the right to an impartial decision maker where he or she was “‘taking official action with respect to [a] proposal to modify a county or municipal ordinance.’”