2010AP70 Acevedo v. City of Kenosha

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Municipalities
Zoning; certiorari

Certiorari review of a zoning decision must be sought against the zoning board of appeals, not the municipality.

“Looking first at the city planning statute, Wis. Stat. § 62.23(7)(e)10. provides: Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board of appeals, commence an action seeking the remedy available by certiorari. The court shall not stay proceedings upon the decision appealed from, but may, on application, on notice to the board of appeals and on due cause shown, grant a restraining order. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review. This same statute, in a later subdivision, provides: Costs shall not be allowed against the board unless it shall appear to the court that the board acted with gross negligence or in bad faith, or with malice, in making the decision appealed from. Sec. 62.23(7)(e)14. (emphasis added). Thus, the language of § 62.23, rather than lend support to Acevedo’s argument, gives credence to the City’s. It 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, Acevedo’s reliance on Wis. Stat. § 68.13(1) goes nowhere. It, too, conveys that the decision maker, i.e., the board, is the properly named party on certification; why else would the court be instructed to ‘remand to the decision maker’?: Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court’s decision.”

Affirmed.

Recommended for publication in the official reports.

2010AP70 Acevedo v. City of Kenosha

Dist. II, Kenosha County, Bastianelli, J., Anderson, J.

Attorneys: For Appellant: Halstead, Aaron N., Madison; For Respondent: Richardson, William K., Kenosha

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