Statutory Interpretation

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WI Court of Appeals – District II

Case Name: Bark River Brigade, U.A., v. Wexford Heights, LP, et al.

Case No.: 2017AP710

Officials: Neubauer, C.J., Reilly, P.J., and Gundrum, J.

Focus: Statutory Interpretation

Bark River Brigade, U.A. (Bark River) consists of a group of property owners who object to the nearby development of land by Wexford Heights, LP, (Wexford) as a gas station/restaurant. Bark River appeals the dismissal of its certiorari action, filed on December 14, 2016, which challenged the Town of Lisbon’s September 2, 2015 grant of a conditional use permit to Wexford. Bark River concedes it was required to pursue a challenge to the Town’s grant of the permit within thirty days of September 2, 2015, and concedes its certiorari action filed on December 14, 2016, did not meet this requirement. It argues, however, that pursuant to WIS. STAT. § 893.13(2) (2015- 16), the thirty-day time limit was tolled by its October 2, 2015 filing of a motion to intervene in a separate certiorari action Wexford had pending against the Town of Lisbon (Wexford action) and through final denial of Bark River’s appeal. We affirm as the time limit was not tolled and thus Bark River’s December 2016 certiorari action was not timely filed.

Whether a certiorari action is properly commenced is a question of law. Koenig v. Pierce Cty. DHS, 2016 WI App 23, ¶17, 367 Wis. 2d 633, 877 N.W.2d 632. “Whether a statutory limitations period requires dismissal of an action where the underlying facts are not in dispute is also a question of law.” Town of Burnside v. City of Indep., 2016 WI App 94, ¶9, 372 Wis. 2d 802, 889 N.W.2d 186 (citation omitted). By its plain language, this provision tolls a statutory time limitation in circumstances where an “action” is commenced. The law is well-settled that a motion to intervene is a “special proceeding” and the filing of such a motion does not constitute the commencement of an “action.” See State v. Alger, 2015 WI 3, ¶¶27-29, 360 Wis. 2d 193, 858 N.W.2d 346. Thus, § 893.13(2) simply does not apply here to toll the thirty-day time limit for commencing a certiorari action following the Town’s September 2, 2015 grant of the conditional use permit to Wexford. See Colby v. Columbia Cty., 202 Wis. 2d 342, 362, 550 N.W.2d 124 (1996) (“[T]he operation of § 893.13 applies only to commenced actions.”). Because Bark River’s October 2, 2015 filing of its motion to intervene did not constitute the commencement of an action, that filing could not and did not toll the thirty-day limitation period. For the foregoing reasons, we affirm.

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