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COURT OF
APPEALS DECISION DATED AND
RELEASED March
20, 1997 |
NOTICE |
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A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule
809.62, Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
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Nos. 95-1861
96-0911
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT IV
95-1861
FRAN
INGEBRITSON,
Plaintiff-Respondent-Cross Appellant,
v.
THE
ZONING BOARD OF APPEALS OF THE CITY OF
MADISON,
GEORGE CARRAN, ZONING ADMINISTRATOR
OF THE
CITY OF MADISON, LINDA GRUBB,
NEIGHBORHOOD
PRESERVATION SUPERVISORY OF THE
CITY
OF MADISON AND THE CITY OF MADISON,
Defendants-Appellants-Cross Respondents,
MENTAL
HEALTH CENTER OF DANE COUNTY, INC.,
Intervenor-Defendant-Appellant-Cross Respondent.
__________________________________________________________________
96-0911
FRAN
INGEBRITSON,
Plaintiff-Respondent,
v.
THE
ZONING BOARD OF APPEALS OF THE CITY OF
MADISON,
WISCONSIN, GEORGE CARRAN, ZONING
ADMINISTRATOR
OF THE CITY OF MADISON, LINDA
GRUBB,
ADMINISTRATIVE NEIGHBORHOOD
PRESERVATION
SUPERVISOR OF THE CITY OF MADISON
AND
THE CITY OF MADISON,
Defendants-Appellants,
MENTAL
HEALTH CENTER OF DANE COUNTY, INC.,
Intervenor-Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Dane County: ROBERT R. PEKOWSKY, Judge.
Affirmed in part; reversed in part and cause remanded with directions.
Before
Vergeront, Roggensack and Deininger, JJ.
VERGERONT,
J. This appeal concerns the validity of a City of Madison
ordinance rezoning property located at 802 East Gorham and the proper
interpretation of that ordinance and a related deed restriction. The property is now owned by the Mental Health
Center of Dane County (MHCDC). The
building on the property is an historic landmark. Fran Ingebritson, a resident in the neighborhood, initiated this
action, which challenges the validity of the rezoning of the property from
General Residential-5 (R5) to Office Residential (OR) in 1986 and various
determinations of the City of Madison zoning administrator and Zoning Board of
Appeals (ZBA) relating to the Yahara House, the facility that MHCDC operates on
the property.
On
cross-motions for summary judgment, the trial court ruled that the rezoning was
illegal spot zoning[1] but that the
deed restriction permitted the operation of Yahara House. The court also concluded that neither the
City of Madison zoning administrator nor the ZBA had the authority to interpret
the deed restriction. Although the
court decided that the ZBA acted arbitrarily and capriciously when it denied
Ingebritson's request to reopen an earlier decision of the ZBA--that the
operation of the Yahara House was permitted in the OR classification--the court
also decided that this issue was moot in view of its ruling of illegal spot
zoning.
On
appeal, the City and MHCDC contend that:
(1) Ingebritson lacks standing; (2) the doctrine of laches
bars Ingebritson's challenge to the 1986 rezoning; (3) the 1986 rezoning
was not illegal spot zoning; (4) the ZBA did not exceed its authority in
interpreting the deed restriction and did properly interpret it; and
(5) the ZBA's denial of Ingebritson's request to reopen its July 22, 1993
decision was not arbitrary and capricious.
Ingebritson cross-appeals, contending that the trial court erred (1) in
its interpretation of the deed restriction, and (2) in concluding that the
issues raised in her petition for review by certiorari were moot.
We
conclude that Ingebritson has standing to challenge the 1986 rezoning, but that
the proper application of the doctrine of laches bars a remedy for that
claim. We conclude she also has
standing to challenge the ZBA's decision not to reconsider its July 22, 1993
determination that Yahara House is an office within the meaning of the OR
classification and its decision that the deed restriction permits accessory
uses for professional and business offices as provided in the OR
classification. We conclude the ZBA did
not act arbitrarily and capriciously in denying Ingebritson's request to
reconsider its July 22, 1993 determination.
Finally, we conclude the ZBA had
authority to review the zoning officials' interpretation of the deed
restriction in this context and that its interpretation should be affirmed.[2]
BACKGROUND
The building at 802 East
Gorham Street was converted from a residence to an office in 1943 for the
headquarters for the Seventh Day Adventists.
In 1976, the new owners received approval from the zoning administrator
to convert the building into an attorney's office with the understanding that
the building, as a professional office, was a non-conforming use under the
then-existing R5 zoning classification and could not be expanded.
In
1985, the same owner applied for an amendment to the zoning ordinance to change
the zoning for the property from R5 to OR.
At the time, a prospective buyer of the property was an advertising
firm. Zoning Administrator George
Carran reviewed the rezoning application and concluded that the advertising
firm would be considered a "business office" and rezoning would be
necessary for it to occupy the building.
Carran recommended approval of the rezoning application.
The
application was referred to the City Planning Department.[3] The planning department's report disagreed
with Carran's conclusion that rezoning was necessary to the operation of a
business office, because a business office was a conditional use in a landmark
building located in a R5 residential district.
See Madison, Wis., Zoning
Code §§ 28.08(6)(c)1 and 28.08(5)(c)4.b (1996). The report recommended approval of a
conditional use, but added that if the plan commission chose to support the
rezoning, a deed restriction was advisable "to retain the residential
character and to avoid the O.R. side effects." After being notified that rezoning was not necessary, the owner
agreed to withdraw the rezoning request and to pursue the conditional use
process.
On
May 5, 1986, the owner submitted a second petition to rezone the property to
OR, but this time another advertising firm, the Hiebing Group, was the prospective
purchaser. The planning department
repeated its conclusion that rezoning would not be necessary to allow a
business office to operate on the property.
Again, the planning department recommended a conditional use procedure
rather than rezoning. After a public
hearing, the plan commission voted to support the rezoning to OR "subject
to a deed restriction limiting the use to business and professional offices and
single-family homes." On June 17,
1986, the common council enacted an ordinance to rezone the property from R5 to
OR. Although the ordinance was adopted
subject to the deed restriction, the deed restriction was not referred to in
the ordinance.[4] After the ordinance was enacted, the Hiebing
Group purchased the property and recorded the deed, but without the deed
restriction. This occurred through oversight by city personnel.
In
the spring of 1993, MHCDC began to explore the property at 802 East Gorham
Street as a site for the Yahara House, which was then operating in another
location in Madison. The Yahara House
is described by its executive director as a psychiatric rehabilitation facility
that provides job training and placement services for persons with long-term
mental illnesses, who are called "members." The functions that take place at the Yahara House include: administration of HUD apartments located
elsewhere; administration of a resale store located elsewhere and at which
members work; and administration of job placement in the community. Psychiatric and medical services are
provided to members at the Yahara House and there is a cafeteria for
members. Members receive skill training
at the Yahara House by helping perform the office and cafeteria tasks.
On
or about May 17, 1993, MHCDC entered into a purchase agreement with the
Hiebing Group for the purchase of the property. Before MHCDC signed the purchase agreement, Carran and Thomas
Akagi, of the planning department, toured the then-current location of Yahara
House at the request of MHCDC. Carran
indicated that "the operations were best described as offices that provide
vocational and job placement in the community," which would be a permitted
use in the OR zoning district. In
response to architect Arlan Kay's request for written confirmation that MHCDC
could operate the Yahara House on the property, Carran sent Kay a letter on
June 1, 1993, stating: "The property
located at the subject address is located in the OR District. Section 28.08 provides that an office for
job placement is listed as a permitted use in the OR district."
Linda
Grubb, Neighborhood Preservation Supervisor of the planning department, sent a
more detailed letter to MHCDC on July 22, 1993, confirming that the Yahara
House came within the OR classification.
Grubb stated that the OR classification lists as permitted uses
"Offices, business and professional, including but not limited to accessory
uses such as restaurants, gift shops, drugstores, valet shops, beauty shops,
and barbershops," Madison, Wis.,
Zoning Code § 28.08(8)(b)3, and that this zoning category was reflective
of the primary functions of Yahara House.
Grubb described the Yahara House as "a mix of office, including
training functions, cafeteria and a small percentage of care mostly in an area
similar to a nurse's station." She
noted that the department had previously determined that Yahara House was an
office when it moved into its present location.
Fran
Ingebritson is a neighborhood resident whose residence is located 250 feet from
the property. She has lived there since
1980 and purchased the property in 1984.
Ingebritson has been involved in zoning issues regarding the property
since the first petition in 1985.
On
June 3, 1993, Ingebritson filed an appeal with the ZBA challenging Carran's
decision, asserting that Yahara House functioned as a clubhouse and therefore
did not meet the conditions for the OR zoning classification. The ZBA considered Ingebritson's appeal on
July 22, 1993. Ingebritson and other
residents of the neighborhood voiced their concerns that allowing Yahara House
to operate on the property would negatively affect the neighborhood because of
the activities and the number of persons involved. They challenged its characterization as an office, asserting that
it had other functions as well, such as day care, social club and recreational
activities. The executive director of
MHCDC and director of Yahara House described the various functions of Yahara
House. The alderperson for the district
spoke in favor of the City's position.
After
hearing the presentations, asking questions and after a lengthy discussion, the
ZBA denied Ingebritson's appeal. It concluded
that Yahara House was not a recreation center or clubhouse and did meet the
definition of office in OR. Ingebritson
did not appeal the ZBA's July 22 decision.
By letter dated July 29, 1993, MHCDC waived all remaining contingencies
under the purchase agreement and provided the seller with a $50,000 line of
credit as the remainder of the earnest money, in addition to a $5,000 check
already provided.
Sometime
in September 1993, while looking through the City's files on the 1986 rezoning,
Ingebritson discovered that the rezoning was subject to the deed restriction,
which had never been recorded.
Ingebritson notified city officials, and on September 22, 1993, the
planning department sent a letter to the Hiebing Group demanding a deed
restriction that limited the use of the property to "business and
professional offices and/or single family residential uses." The Hiebing Group prepared a deed
restriction which was executed and recorded on November 17, 1993, after
approval by city personnel. The restrictive
covenant provided:
1. The Property shall be restricted
in use to business and professional offices and single-family homes.
2. This covenant is placed upon the
Property for the benefit of the City of Madison (the "City") and may
be enforced by a suit by the City for injunctive relief and/or damages, and
shall be binding on all present and future owners, heirs and assigns.
3. This
covenant shall run with the land and may be released or modified only with the
consent of the Common Council of the City pursuant to a then-existing ordinance
of the City.
On
October 1, 1993, Ingebritson petitioned Carran for a rehearing of the zoning
board's July 22, 1993 decision based on her discovery of the deed restriction
and other information about the 1986 rezoning.
Carran denied her petition as untimely because it was not filed within
ten days of the board's action as required by the Zoning Board of Appeals Procedure Manual ¶ D.4 (1982). The city attorney's office confirmed in a
letter to Ingebritson that the rehearing request was untimely. That letter explained that the deed
restriction was not new evidence because the deed restriction contemplated
certain permitted uses under OR--"offices, business and professional,
including but not limited to accessory uses such as ..."--and the ZBA had
decided that Yahara House fit within those uses. Grubb wrote to Ingebritson at the same time, stating that it was
the position of the zoning administrator that the deed restriction limited use
of the property to all but business and professional offices and accessory
uses, as itemized in the OR zoning classification (as well as single-family
residences). Grubb advised Ingebritson
that although her request for reconsideration of the ZBA's July 22, 1993
decision had been denied as untimely, Ingebritson could appeal the department's
decision interpreting the deed within fifteen days. Ingebritson did.
On
November 18, 1993, the ZBA heard Ingebritson's appeal of the zoning
administrator's interpretation of the deed.
Ingebritson and other neighbors opposing the department's interpretation
of the deed restriction appeared, as did representatives of MHCDC. Ingebritson moved for a suspension of the
rules so that her appeal of the decision that Yahara House was an office could
be reheard. The members of the ZBA
discussed whether they should suspend the rules for that purpose. The motion to do so failed on a 2-2
vote. The ZBA unanimously approved the
determination that the deed restriction allows accessory uses associated with
the office category in the OR classification.
Ingebritson
filed this action seeking a declaratory ruling on the validity of the 1986 rezoning
from R5 to OR, a declaratory ruling on the authority of the zoning
administrator or staff to construe the deed restriction and construction of the
deed restriction, and review by certiorari of the November 18, 1993 decisions
of the ZBA.
STANDING
The defendants argue
that Ingebritson has no standing to seek a declaratory judgment regarding the
1986 rezoning because her pleadings do not allege facts that show she is
aggrieved by that action. They also
appear to argue that she has no standing to appeal the November 18, 1993
decision of the ZBA. We reject both of
these contentions.
In
its motion to dismiss based on lack of standing, the City asserted that
Ingebritson had not alleged in her amended complaint her address, taxpayer
status, that she was aggrieved, or that there was an injury to any interest the
law protected. In response, Ingebritson
filed a second amended complaint in which she alleged that she resides
approximately one-half block from the property located at 802 East Gorham
Street, that she is a taxpayer, that she is aggrieved by the decisions of the
ZBA and that the actions of the defendant described in the complaint will cause
her injuries that will be redressed by a favorable decision.[5] The trial court permitted Ingebritson to
file the second amended complaint and denied the motion to dismiss for lack of
standing as moot, because of the allegations just recited. The City did not renew a motion to dismiss
claiming that the allegations in the second amended complaint were inadequate,
nor did it include lack of standing as a ground in its summary judgment
motion.
The
narrow issue we decide here is whether the second amended complaint is
sufficient to allege standing for the illegal spot zoning claim and the
certiorari review.[6] We conclude that it is. On a motion to dismiss, we take the
allegations as true, construe the complaint liberally and dismiss only when it
is clear that the plaintiff cannot recover.
Evans v. Cameron, 121 Wis.2d 421, 426, 360 N.W.2d 25, 28
(1985). Whether a complaint is
sufficient to withstand a motion to dismiss is a question of law which we
review de novo. Watts v. Watts,
137 Wis.2d 506, 512, 405 N.W.2d 303, 306 (1987).
In
order to have standing to seek a declaratory ruling regarding the rezoning,
Ingebritson must have a legally protectable interest or right at stake. See City of Madison v Town of
Fitchburg, 112 Wis.2d 224, 228, 332 N.W.2d 782, 784 (1983). The declaratory judgment statute
specifically contemplates its use to determine the construction or validity of
any municipal ordinance when a person's rights are affected by it. Section 806.04(2), Stats. We have
recognized and approved its frequent use to test the validity of municipal
legislation, and have held that town residents have standing to seek a
declaratory ruling on the validity of a town zoning ordinance. Weber v. Town of Lincoln, 159
Wis.2d 144, 147-48, 463 N.W.2d 869, 870 (Ct. App. 1990).
When
a zoning action affects an adjoining or nearby property owner, that property
owner is generally considered to have an interest sufficient to confer standing
to challenge zoning decisions relating to another's property. See Rathkopf,
Arden H. and Rathkopf, Daren A., Rathkopf's The Law of Zoning and Planning
§§ 43.03[2] and 43.04[1]. Liberally
construed in her favor, Ingebritson's allegation that she lives one-half block
from the property, together with the allegations describing how the property
was used in the past and could be used in the future under the rezoning and the
City's interpretation of the deed restriction are sufficient to show that her
interest as a nearby property owner is or will likely be adversely affected by
the rezoning.
With
respect to the certiorari action, "any person aggrieved" by the
decision of the zoning administrator may appeal to the ZBA. Section 62.23(7)(e)4, Stats.
Any "person ... aggrieved" by any decisions of the ZBA may,
within thirty days after the filing of the decision, seek the judicial remedy
available by certiorari. Section
62.23(7)(e)10. We have held that area
residents, even though not parties to a ZBA proceeding, were aggrieved by the
grant of a conditional use permit authorizing construction of a large
egg-laying facility. Brookside
Poultry Farms, Inc. v. Jefferson County Bd. of Adjustments, 125 Wis.2d
387, 389-91, 373 N.W.2d 450, 451-52 (Ct. App. 1985). The allegations in the second amended complaint, liberally
construed, are sufficient to show that Ingebritson was aggrieved by the ZBA's
decisions on November 18, 1993.
LACHES--1986
REZONING
The
City and MHCDC argue that the trial court erred in concluding that laches did
not bar any remedies Ingebritson might have based on her challenge to the 1986
rezoning as illegal spot zoning. Laches
is an equitable defense and the elements are:
(1) unreasonable delay, (2) knowledge of and acquiescence in
the course of events, and (3) prejudice to the party asserting laches. In the Matter of the Estate of Lohr,
174 Wis.2d 468, 477, 497 N.W.2d 730, 733 (Ct. App. 1993). The facts are undisputed, both sides having
moved by cross-motion for summary judgment, see Streiff v.
American Family Mutual Ins. Co., 114 Wis.2d 63, 64-65, 337 N.W.2d 186,
187 (Ct. App. 1983), rev'd on other grounds, 118 Wis.2d 602, 348 N.W.2d
505 (1984). We therefore review this
issue to determine which party is entitled to summary judgment as a matter of
law. See id.[7] We conclude, based on the undisputed facts,
that each element of laches is met.
The
following facts relate to the first two elements--unreasonable delay and
acquiescence with knowledge.
Ingebritson was a member of the Market Neighborhood Association in 1986
and knew about the request to rezone the property at 802 East Gorham Street. She spoke with and attended meetings with
representatives of the owner of the property at that time when they came before
the neighborhood association to discuss the rezoning request. The association approved the first rezoning
request, which was not pursued by the owner.
Ingebritson was aware at the time that a letter was sent on behalf of
the neighborhood association to the zoning commissioners stating: "[on January 9, 1986] [w]e
unanimously voted to unconditionally back the zoning change from R5 to OR
necessary for Reed Design Inc. to purchase and occupy East Gorham
Street." The association also
approved the second rezoning request, which ultimately resulted in the
rezoning. The vote on the second
request was unanimous, and Ingebritson voted for the rezoning.
The
trial court concluded that the delay of seven years was not unreasonable
because there was no material change in the use of the property until the
proposals to relocate the Yahara House to the property in the spring of 1993. The trial court also concluded that the
City's assertion of Ingebritson's acquiescence is not convincing because
"there was more than one irregularity in the 1986 rezoning
process." The court does not
specify what those are as they relate to the defense of laches, but we assume
the court is referring to the deed restriction, which was not recorded at the
time and was not mentioned to the neighborhood association or in the public
notice of the rezoning. Ingebritson
argues on appeal that she and the neighborhood association believed when they
approved the rezoning that it was for a "technical" reason and would
not change the use of the property, and that she was misled in this regard and
did not know all the facts until 1993 when she discovered the deed restriction
and other information in the City's file.
We
fail to see how Ingebritson's lack of knowledge of the deed restriction bears
on the reasonableness of her actions and her acquiescence to the 1986
rezoning. The deed restriction imposes
a significant restriction on the use of the property compared to that otherwise
permitted in OR. Ingebritson does not
explain how knowledge of this restriction would have affected her approval of
the rezoning or would have induced her to object to the rezoning prior to
1993. She and the neighborhood
association gave their approval of a rezoning from R5 to OR without any deed
restrictions.
We
have carefully considered Ingebritson's argument that she was misled in 1986,
but the undisputed facts do not provide a basis for a reasonable belief that
the rezoning would not affect the use of the property in the future. It is true the rezoning was presented as
necessary to permit Reed Design to use the property, and Ingebritson and the
neighborhood association did not have any objection to that use. However, we see nothing in the record
indicating that Ingebritson was advised by a representative of the City or the
property owner that rezoning to OR would not have an effect on possible future uses
of the property. From a reading of the
two classifications, it is obvious that a number of uses are permitted in OR
that are not permitted in R5. In the
absence of a commitment that a reasonable person would rely on to believe that
use of the property in the future would not be governed by the OR
classification in spite of rezoning to that classification, we conclude such a
belief is not reasonable.
Ingebritson
also points out that she did not know until 1993 that the planning department
staff had concerns about the OR classification and had recommended against
it. However, there was public notice of
the plan commission meeting at which the recommendation was presented. We reject Ingebritson's claim that she was
misled because the neighborhood association was not provided with all the information
that members could have had if they had attended publicly-noticed hearings on
the rezoning.
The
trial court agreed with Ingebritson's argument that her interests were not
adversely affected until the Yahara House proposal in 1993. We do not agree with the underlying premise
that it is reasonable for a nearby property owner to wait until she disagrees
with the application of a rezoned classification to a particular facility
before challenging the rezoning.
Ingebritson had a procedure, which she made use of, to challenge the
determination that the Yahara House was permitted in OR. She could not reasonably anticipate the way
in which the City would enforce the rezoning in particular cases, but she had
the opportunity to challenge the particular determination. However, she should
reasonably have concluded that if the property was rezoned OR, uses permissible
under OR, but not under R5, would be permitted in the future. We conclude it was unreasonable for her to
wait for seven years, until she objected to a particular proposed use, to
challenge the rezoning. We also
conclude that she acquiesced in the rezoning with knowledge of these events.
The
third element of laches is prejudice.
The trial court concluded that the City had not demonstrated any
prejudice, and that MHCDC had not either because this suit challenging the
validity of the 1986 rezoning was filed in December 1993, before MHCDC closed
on the property in April 1994. We agree
with the trial court that there is no evidence, or reasonable inferences from
evidence drawn in the City's favor, that the City was prejudiced by
Ingebritson's failure to challenge the 1986 rezoning earlier. However, we conclude that the undisputed
evidence shows that MHCDC was prejudiced because it was bound under a
non-contingent purchase agreement prior to learning that Ingebritson was
challenging the 1986 rezoning.
The
City argues in general terms that the passage of time has hampered its ability
to defend the illegal spot zoning claim and it is thereby prejudiced. However, it offers no specific instance of
prejudice. Carran and Grubb are still
employed by the City. William Roberts,
the planning department staff member who was assigned responsibility for the
report of the 1985 and 1986 rezoning requests, holds the same position now and
was extensively deposed. He brought the
planning department case file from the 1985-86 process to his deposition, and
the City does not tell us that any records or files were missing or had been
destroyed.[8]
Roberts
deposed that the head of the planning department at that time, Charles Dinauer,
wrote the recommendation and the portion of the report expressing concerns about
the OR side effects, after discussion with Roberts and others in the
department. Dinauer has since retired
and lives out of state. But the City
does not explain how it is hampered in its defense by Dinauer's
retirement.
The
City also makes the general argument that it is important to the zoning process
as a whole that there be stability and predictability, and that allowing
Ingebritson's claim after seven years is antithetical to those interests. However, the City does not provide us with
any authority for the proposition that those general interests substitute for a
specific showing of prejudice in the application of laches.
In
contrast, MHCDC has presented undisputed evidence of prejudice to it. After Carran's June 1, 1993 letter stating
his opinion that the Yahara House was a permissible use in OR, Ingebritson
appealed the decision that Yahara House was primarily an office within the
meaning of the OR classification. That
was the issue at the hearing before the ZBA on July 22, 1993--not whether the
rezoning to OR was valid.
After
the ZBA denied the appeal on July 29, 1993, MHCDC waived all remaining
contingencies under the purchase agreement and provided the seller with a
$50,000 line of credit as the remainder of the earnest money, in addition to a
$5,000 check already provided. At that
time, MHCDC had reason to know that Ingebritson might appeal the ZBA's
determination, but there is no evidence giving rise to a reasonable inference
that MHCDC had reason to know that Ingebritson would challenge the validity of
the OR zoning classification.
Ingebritson
has presented no evidence that MHCDC could have avoided financial loss had it
decided not to go ahead with the purchase of the property once it learned,
through her filing of the suit on December 16, 1993, that she was challenging
the validity of the OR classification in addition to the ZBA's interpretation
of the classification. Although we must
draw all reasonable inferences from the evidence in Ingebritson's favor when
deciding the opposing party's motion for summary judgment, see Grams
v. Boss, 97 Wis.2d 332, 339, 294 N.W.2d 473, 477 (1980), we conclude
that the only reasonable inference from the evidence is that MHCDC would suffer
substantial financial loss if it breached the non-contingent purchase
agreement.
Since
each element of laches is met, Ingebritson is barred by laches from seeking
remedies based on the 1986 rezoning.
REOPENING JULY
22, 1993 ZBA DECISION
We
address next Ingebritson's petition for review by certiorari of the ZBA's
decision on November 12, 1993, not to reopen its July 22, 1993 decision that
the Yahara House was an office within the meaning of the OR
classification. The trial court
concluded that the ZBA acted arbitrarily and capriciously in doing so, but did
not remand because it considered this issue moot. Because we have concluded that the 1986 rezoning to OR cannot be
challenged due to laches, the issue whether the ZBA acted arbitrarily and
capriciously in declining to reopen its decision interpreting the OR
classification is not moot. We
therefore review that decision by the ZBA.
We
review the ZBA's decision, not that of the trial court, and apply the same
standard of review as the trial court. See
State ex rel. Cox v. DHSS, 105 Wis.2d 378, 380, 314 N.W.2d 148,
149 (Ct. App. 1981). Our review is
limited to determining whether:
(1) the ZBA kept within its jurisdiction; (2) whether it
proceeded under a correct theory of law; (3) whether its action was
arbitrary, oppressive or unreasonable; and (4) whether the evidence was
such that it might reasonably make the determination in question. Snyder v. Waukesha Co. Zoning Board,
74 Wis.2d 468, 475, 247 N.W.2d 98, 102 (1976).
We accord a presumption of correctness and validity to the ZBA's
decision. Arndorfer v. Sauk
County Board of Adjustment, 162 Wis.2d 246, 253, 469 N.W.2d 831, 833
(1991). If any reasonable view of the
evidence would sustain the ZBA's determination, we affirm. See Nufer v. Village Bd. of Village of
Palmyra, 92 Wis.2d 289, 301, 284 N.W.2d 649, 655 (1979). Applying these standards to ZBA's decision
not to reopen its July 22, 1993 decision, we conclude it should be
affirmed.
The
ZBA rules provide that requests for hearing (except for persons denied a
variance) must be submitted within ten calendar days of the board's action and
no such request shall be entertained "unless substantial new evidence is
submitted which could not reasonably have been presented at the previous
hearing or which causes a reasonable belief that evidence at the prior meeting
was materially inaccurate or incomplete."
Zoning Board of Appeals Procedure
Manual ¶ D.4 (1982).
Ingebritson's request for a reconsideration on October 1, 1993, was well
past the ten-day time period and was denied for that reason. The denial was confirmed by a letter to
Ingebritson from an assistant city attorney, and that letter dealt specifically
with her reasons for requesting a reconsideration. That letter explained that the existence of the deed
restriction--which the ZBA as well as Ingebritson was apparently unaware of at
the time of the July 22, 1993 hearing--was not material to the ZBA's
determination that Yahara House fit within the term "office" in the
OR classification.
However,
because the interpretation of the deed restriction had not been addressed at
the July 22 hearing, Ingebritson was advised she could appeal the zoning
administrator's interpretation of the deed restriction, which she did. Her appeal addressed only the issue of the
interpretation of the deed restriction, and did not request a reopening of the
July 22, 1993 ZBA decision. At the
November 18, 1993 hearing on that appeal, in the midst of presentation and
discussion on the interpretation of the deed restriction, Ingebritson asked the
ZBA to suspend its rules and to rehear her appeal challenging its determination
that the Yahara House was an office.
The board members moved and seconded a discussion on that request. They heard extensive argument on the request
from Ingebritson, neighbors, MHCDC representatives and planning department
officials. They had before them all the
material that Ingebritson considered pertinent to their July 22, 1993 decision
which was not presented then. There was
lively discussion among the board members, with two expressing views that some
of the "new evidence" warranted a reopening, and two others
expressing views that they had already made the decision and should not reopen
since two months had passed and the Yahara House had relied on their decision. The vote was 2-2, which meant that
Ingebritson's request failed, since four votes were needed to suspend the
rules.
Ingebritson
has not provided us with the rule that permits the ZBA to suspend its own
rules, but we assume for purposes of argument there is one and that it applies
to the rule on reconsideration. We
conclude that, since there is a specific ten-day deadline for a reconsideration
request, and specific criteria that a request made within that time period must
meet, the ZBA can reasonably deny a request to set aside this rule in the
absence of a showing of compelling circumstances. The ZBA could reasonably conclude that Ingebritson had not made
such a showing.
Even
if we assume that the deed restriction could not reasonably have been
discovered before the July 22, 1993 hearing, the board members could reasonably
conclude that the deed restriction would not have altered its interpretation of
"office" in the OR classification.
The board could also reasonably conclude that additional information
about the Yahara House and the planning staff's recommendation in 1986 either
could have been presented at the July 22 hearing, would not have made a
difference to their decision, or both.
We conclude that the ZBA did not act arbitrarily or capriciously in
denying Ingebritson's request to reopen, and that a reasonable view of the
evidence supports its decision.
INTERPRETATION OF DEED
RESTRICTION
The City and MHCDC argue
that the trial court erred in concluding that the zoning administrator and the
ZBA exceeded their authority in interpreting the deed restriction. Ingebritson responds that the court was
correct in this ruling because the deed restriction was not mentioned in the
ordinance and so should be interpreted by the court as any private deed
restriction would be. She contends,
however, that the court's construction of the deed restriction was
erroneous. The parties agree that the
rezoning ordinance was passed subject to the deed restriction and that the deed
restriction was intended to exclude certain uses that are permissible under the
OR classification, although they disagree over what uses were meant to be
excluded. No party is challenging the validity
of the deed restriction or the authority of the City to pass a rezoning
ordinance conditioned on the deed restriction.[9] It is undisputed that the deed restriction
was not referenced in the rezoning ordinance due to an oversight on the part of
the City, and that the City, also through oversight, failed to see that the
deed restriction was recorded promptly upon the rezoning.
We
have difficulty reconciling Ingebritson's position that the deed restriction
was intended to protect against certain side effects of the OR rezoning with
her position that the deed restriction should be interpreted by the court, not
by the zoning administrator, in the manner of any deed restriction between
private parties. Moreover, Ingebritson
does not explain how she has standing to request a declaratory judgment on the
construction of the deed restriction.
Only a party in privy to a deed can enforce a restrictive covenant in
the deed, except that another purchaser of property in the same tract may
enforce the covenant if there is evidence to show that the original grantor
inserted the covenant to carry out a general plan or scheme of development. Crowley v. Knapp, 94 Wis.2d
421, 425, 288 N.W.2d 815, 817-18 (1980).
Ingebritson is not in privy and the "general plan or scheme of
development rule" does not apply.
Although
the deed restriction provides that it is for the benefit of the City of Madison,
we do not see how that provision gives standing to Ingebritson to seek
construction or enforcement of the covenant.
Ingebritson has provided us with no authority, and we have been able to
discover none, that would support her position that she has standing to seek a
judicial declaration on the construction of this deed restriction, if we
consider it a deed restriction between two private parties for the benefit of
the City.[10]
The
parties appear to agree that if the rezoning ordinance had contained an express
condition relating to the deed restriction, as it should have, the zoning
administrator could have construed the deed restriction in the context of
construing the ordinance to determine if the operations of the Yahara House
were permitted by the ordinance. In
that event, the ZBA would have had the authority to determine whether the
zoning administrator erred in that construction. Under § 62.23(7)(e)7, Stats.,
the ZBA has the authority to hear appeals alleging error in "any
determination made by an administrative official in the enforcement of an
ordinance adopted pursuant to [this section on zoning]."
The
City argues that the zoning administrator and the ZBA have the same authority
even though the deed restriction was not mentioned in the ordinance as it
should have been. If we reject this
argument, Ingebritson is left with no opportunity to seek either enforcement or
construction of the deed restriction.
We conclude that under these unique circumstances, the better approach
is to treat the deed restriction as part of the rezoning ordinance, as it
should have been, with the result that the zoning administrator had the
authority to construe the deed restriction when requested by Ingebritson and
she had standing to appeal that determination to the ZBA, as she did.
Since
Ingebritson's complaint, as an alternative form of relief, seeks review by
certiorari of the ZBA's November 12, 1993 decision to affirm Grubb's
interpretation of the deed restriction, we undertake that review now. We have outlined above the general standard
of our review by certiorari. Because we
are treating the deed restriction as part of the rezoning ordinance, we look to
the rules of construction and review applicable to the interpretation of zoning
ordinances in certiorari proceedings. A
court is not bound by a zoning board's interpretation of a zoning ordinance,
but that interpretation is generally entitled to some weight. Hansman v. Oneida County, 123
Wis.2d 511, 514, 366 N.W.2d 901, 903 (Ct. App. 1985). The degree of deference appropriate depends on the circumstances. See Marris v. City of Cedarburg,
176 Wis.2d 14, 33, 498 N.W.2d 842, 850 (1993), citing West Bend Educ.
Assn. v. WERC, 121 Wis.2d 1, 11-12, 357 N.W.2d 534, 539 (1984).
We
do not agree with Ingebritson's contention that the meaning of the deed restriction
is unambiguous. We conclude, like the
trial court, that it is ambiguous because it is susceptible to more than one
reasonable interpretation. Since all
parties agree that the purpose of the deed restriction is to accommodate the
concerns of the planning staff and/or the planning commission at the time of
the rezoning, we conclude that we should defer to the ZBA's interpretation of
the deed restriction if it is reasonable.
In deciding whether it is reasonable, we consider also these general
precepts for construction of restrictions contained in both zoning ordinances
and deeds: Such restriction must be
strictly construed to favor the unencumbered and free use of property, and a
provision in either which purports to operate in derogation of the free use of
property must be expressed in clear, unambiguous and preemptory terms. Crowley, 94 Wis.2d at 435, 288
N.W.2d at 822.
We
conclude that interpreting the deed restriction to include uses described as
accessory uses for professional and business offices in the OR classification
is reasonable. The ZBA heard extensive
argument on the proper construction of the deed restriction. It discussed at length Ingebritson's position
that the 1986 planning staff report demonstrated that the intent was to preserve
the residential character of the neighborhood and protect against the side
effects of OR zoning. In Ingebritson's
view that report shows that the deed restriction was not intended to include
accessory uses, but only professional or business offices themselves, as well
as single-family residences.
However,
although the 1986 planning staff report recommended a deed restriction, it did
not specify the contents. The wording
of the deed restriction was contributed by the planning commission, but there is
no information in the record as to what the planning commission intended. The ZBA recognized this. It was persuaded by the zoning
administrator's interpretation, which was based on an analysis of the OR
classification. There were three
categories of permitted uses in the OR classification at the time of the
rezoning: Any use permitted in
R6-General Residence District; hotels and motels, including accessory uses; and
offices, professional and business, including accessory uses. Madison,
Wis., Zoning Code § 28.08(8)(b)3 (1996). The zoning administrator decided that the deed restriction was
intended to eliminate completely the use for motels and hotels, restrict
residential use to single family dwellings, and permit professional and
business offices as contemplated by the OR classification. The zoning administrator reasoned that had
the planning commission meant to exclude accessory uses for offices it would
have said so, because accessory uses are included in the permitted office use
under OR. This is in contrast to
accessory uses for single family residences, which are treated as separate
permitted uses. See Madison, Wis., Zoning Code §
28.08(2)(b)8.[11]
While
Ingebritson's interpretation of the deed restriction is a reasonable one, the
ZBA's interpretation is also reasonable.
Considering, in addition, the rule favoring a strict construction of
limitations on use of property, we conclude that ZBA's interpretation of the
deed restriction should be affirmed.
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded with directions.
Not recommended for
publication in the official reports.
[1] Spot zoning is the practice of allowing a
single lot or area special privileges that are not extended to other land in
the vicinity in the same use district. Bubolz
v. Dane County, 159 Wis.2d 284, 297, 464 N.W.2d 67, 73 (Ct. App.
1990). Spot zoning is not per se
illegal but should only occur when it is in the public interest and not solely
for the benefit of the property owner who requested the rezoning." Id.
[2] The City and MHCDC also contend that
Ingebritson's claim of illegal spot zoning is barred because she failed to file
a notice of claim as required by § 893.80(1), Stats. Because of our
conclusion that laches is a bar to that claim, we do not address this
issue.
[3] The City Planning Department is now called
the Department of Planning and Development.
We will refer to it as the planning department.
[4] It appears that the common council members
had before them the planning commission's recommendation including the
recommended deed restriction. However,
the minutes of the common council meeting show only that an ordinance was
adopted "rezoning 802 E. Gorham Street from R5 to OR." All parties assume or agree that the
ordinance was adopted subject to the deed restriction recommended by the plan
commission.
[5] At the same time Ingebritson filed an
affidavit detailing her past rental and current ownership of her residence, its
exact location in relation to 802 East Gorham Street, and the ways in which the
rezoning from R5 to OR and the operation of Yahara House will adversely affect
her. We do not consider this affidavit
in resolving the standing challenge because the City raised the issue only in a
motion to dismiss, and it appears the trial court decided the motion based only
on the second amended complaint.
[6] We address the question of standing to
request a declaration construing the deed restriction later in this opinion.
[7] We have previously noted that there is
authority supporting two different standards of review for a trial court's
decision on laches: deference to the
trial court's decision on reasonableness because it is a question of law
intertwined with factual findings, or review for erroneous exercise of
discretion. Estate of Lohr,
174 Wis.2d at 478, 497 N.W.2d at 734.
We need not decide which is correct because in this case the facts are
undisputed. Therefore the reason for
deferring to the trial court--question of law intertwined with factual
findings--is absent. There is only a
question of law. Were a discretionary
standard applicable, a misapplication of the law to undisputed facts would be
an erroneous exercise of discretion. See
Berg v. Marine Trust Co., 141 Wis.2d 878, 887-92, 416 N.W.2d 643,
647-49 (Ct. App. 1987).
[8] The City argues in its brief on appeal that
"the record of the very meeting that addressed those issues [spot zoning]
has been lost to the passage of time."
However, there is no citation to the record, and we are unable to
discover anything in the record indicating that a record pertinent to the spot
zoning claim once existed but no longer exists.
[9] A municipality may properly adopt an
ordinance providing that rezoning of particular property becomes effective when
certain conditions are met within a specified time period. Konkel v. Common Council, City of
Delafield, 68 Wis.2d 574, 579, 229 N.W.2d 606, 609 (1975). See also Zupancic v. Schmenz,
46 Wis.2d 22, 30, 174 N.W.2d 533, 538 (1970).
[10] It may be that if the City had a clear legal
duty to enforce the covenant, the City could be compelled to do so if the other
conditions for a mandamus were met. See
State ex rel. Ryan v. Pietrzykowski, 42 Wis.2d 457, 462, 167
N.W.2d 242, 245 (1969). We see no
source for such a clear legal duty unless it derives somehow from the rezoning
ordinance, which, again, points to the necessary relationship between the
rezoning ordinance and the deed restriction.