Zoning appeal must name board

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An appeal of a zoning decision must name the zoning board as the defendant, not the municipality.

The Wisconsin Court of Appeals acknowledged that in many published opinions reviewing zoning decisions, a municipality was named as the defendant.

But in none of those cases was the issue raised, so the court found them of no persuasive value.

Linda Acevedo operated a day care center in the lower unit of a residential duplex in the City of Kenosha. In 2009, she sought a license to operate a second center in the upper unit.

The city then informed her that both the existing center and the proposed center violated the city’s zoning laws, and ordered her to cease and desist all day care activities at the property.

Acevedo unsuccessfully appealed to the City of Kenosha Zoning Board of Appeals.

She then filed a certiorari action in circuit court, naming only the City as a defendant. The City moved to dismiss the action, and the circuit court granted the motion.

Acevedo appealed, but the Court of Appeals affirmed on Dec. 22.

The court concluded that the language of sec. 62.23(7)(e) unambiguously provides that the board is the proper defendant.

Subsec. (7)(e)14 of provides that, “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 (emphases added by court).”

Acevedo cited many cases in which a plaintiff named the municipality instead, and yet the cases proceeded to the Court of Appeals or Supreme Court without dismissal: City News & Novelty, Inc. v. City of Waukesha, 231 Wis. 2d 93, 604 N.W.2d 870 (Ct. App. 1999); Lake City Corp. v. City of Mequon, 207 Wis. 2d 155, 558 N.W.2d 100 (1997); Driehaus v. Walworth County, 2009 WI App 63, 317 Wis. 2d 734, 767 N.W.2d 343; and Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W.2d 842 (1993).

But the court found the captions of the cases irrelevant: “In neither case did the issue of the propriety of naming the municipality arise; thus, while these cases name only the municipality, they are distinguishable.”

The court therefore affirmed dismissal of the City as a defendant.

David Ziemer can be reached at [email protected]

What the court held

Case: Acevedo v. City of Kenosha, No. 2010AP70

Issues: Is a municipality a proper defendant in a court challenge to a zoning decision?

Holdings: No. The zoning board, rather than the municipality, should be named as the defendant.

Attorneys: For Plaintiff: Aaron N. Halstead, Madison; For Defendant: William K. Richardson, Kenosha