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Zoning Case Analysis

By: dmc-admin//March 10, 2004//

Zoning Case Analysis

By: dmc-admin//March 10, 2004//

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While the Supreme Court affirms the decision of the court of appeals, it changes the result somewhat in that, on remand, the circuit court will be free to consider all equitable arguments, regardless of whether the certiorari court has already considered them. Under the Supreme Court’s decision, issue preclusion has no place in the circuit court, regardless of whether equitable arguments were in fact considered in the certiorari action.

Justice Prosser’s concurrence raises the question whether any aspect of Lake Bluff Housing Partners v. City of South Milwaukee, 2001 WI App 150, 246 Wis.2d 785, 632 N.W.2d 485 (Lake Bluff IV) is effectively overruled for suggesting otherwise.

However, an examination of Lake Bluff IV reveals that no part of the case is suspect. It may be true, as Prosser contends, that, “In fact, … the circuit court determined that some equitable factors — that is, equitable factors that had been raised and rejected in prior legal proceedings — could not be considered de novo by the court in an equity proceeding because the prior legal determinations were the law of the case.”

However, the court of appeals decision in Lake Bluff IV suggests no such thing, and states that the circuit court did address all the pertinent factors. Lake Bluff IV, 246 Wis.2d at 800-801.

Thus, regardless of whether the court of appeals did misstate the facts, as Justice Prosser contends, there are no passages in Lake Bluff IV discussing the law that can be deemed to no longer represent an accurate description of the law.

Another significant aspect of the case is the effective extension of Goode from actions pursuant only to sec. 59.69(11) to all zoning enforcement actions.

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Wisconsin Supreme Court

Related Article

Landowners can contest
enforcement of decision

The Goode decision is devoted almost entirely to statutory interpretation. The decision in the case at bar, however, engages in no statutory interpretation of sec. 62.23(8), but rests entirely upon the different function that circuit courts perform in certiorari review, as opposed to original jurisdiction. Thus, the decision in the case at bar has broader application.

Finally, the decision lays to rest any uncertainty suggested by the court of appeals in footnote 3 of its decision.

The court of appeals wrote, “We note that unlike both [Goode] and [Lake Bluff IV], this case involves a legal nonconforming use. The spirit of zoning is to restrict nonconforming uses and to eliminate such uses as quickly as possible. The application of Goode’s analysis, allowing courts to balance the equities of a situation and deny the relief sought, appears to run contrary to well-established principles of zoning law. This is because there is a chance that the nonconforming use would be allowed to stay, thus running counter to public policy. We therefore question whether Goode should be applied when the case involves legal nonconforming uses (citations omitted).”

The Supreme Court’s decision, by contrast, does not even acknowledge such concerns. So, like the court of appeals’ discussion of issue preclusion, this passage can be deemed a dead letter, too.

– David Ziemer

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David Ziemer can be reached by email.

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