PUBLISHED OPINION
Case No.: 96-1316
Complete Title
of Case:
DONALD H. TESKER, MARLENE E. TESKER,
RICHARD H. TESKER and PAMELA M. TESKER,
Plaintiffs-Respondents,
v.
TOWN OF SAUKVILLE,
Defendant,
DANIEL GUTE, as
Chairperson of the Town
Board of Saukville,
Defendant-Appellant,
DANIEL GUTE, in his
individual capacity,
Intervening
Defendant-Appellant.
Submitted on Briefs: January 22, 1997
Oral Argument:
COURT COURT OF APPEALS OF WISCONSIN
Opinion Released: February 12, 1997
Opinion Filed: February
12. 1997
Source of APPEAL Appeal from a judgment
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Ozaukee
(If
"Special", JUDGE: JAMES B. SCHWALBACH
so indicate)
JUDGES: Snyder, P.J., Nettesheim and Anderson, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn behalf of the defendant-appellant and intervening
defendant-appellant, the cause was submitted on the briefs of Alan Marcuvitz
and Andrea Roschke of Weiss, Berzowski, Brady & Donahue of
Milwaukee.
Respondent
ATTORNEYSOn behalf of the plaintiffs-respondents, the cause was
submitted on the brief of Robert A. Teper and Gary A. Ahrens of Michael
Best & Friedrich of Milwaukee.
COURT OF
APPEALS DECISION DATED AND
RELEASED FEBRUARY
12, 1997 |
NOTICE |
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
volume of the Official Reports. |
No. 96-1316
STATE OF WISCONSIN IN
COURT OF APPEALS
______________________________________________________________________________
DONALD
H. TESKER, MARLENE E. TESKER,
RICHARD
H. TESKER and PAMELA M. TESKER,
Plaintiffs-Respondents,
v.
TOWN
OF SAUKVILLE,
Defendant,
DANIEL GUTE, as Chairperson of the Town
Board of Saukville,
Defendant-Appellant,
DANIEL GUTE, in his individual capacity,
Intervening Defendant-Appellant.
APPEAL
from a judgment of the circuit court for Ozaukee County: JAMES B. SCHWALBACH, Judge. Affirmed.
Before
Snyder, P.J., Nettesheim and Anderson, JJ.
ANDERSON,
J. Daniel Gute, Chairperson of the Town Board
of Saukville, appeals from a judgment of mandamus directing him to take all of
the necessary steps to cause an amendatory ordinance to become effective. Gute challenges the circuit court’s
conclusion that under the zoning ordinance a unanimous vote of the Town Board
was not required to pass an amendment to a procedural provision of the
ordinance. We affirm because both the
context of the ordinance and common sense support the determination of the
circuit court.
The
Town of Saukville has adopted the Town
of Saukville, Wis., Zoning Ordinance (1991) (the ordinance) under §§
60.62(1) and 61.35, Stats. A provision in the zoning ordinance establishes
the vote of the Town Board needed to accept or reject recommendations from the
Town of Saukville Plan Commission:
10.6 TOWN BOARD’S ACTION
Following
such hearing and after careful consideration of the Town Plan Commission’s
recommendation, the Town Board shall vote on the passage of the proposed change
or amendment.
The Town
Plan Commission’s Recommendation may only be overruled by the unanimous
vote of the full Town Board’s membership.
[Emphasis added.]
Prior
to October 17, 1995, an amendatory ordinance to reduce the vote needed for a
simple majority was introduced and referred to the Plan Commission. The amendatory ordinance provided:
10.6 TOWN BOARD’S ACTION
Following
such hearing and after careful consideration of the Town Plan Commission’s
recommendation, the Town Board shall vote of the passage of the proposed change
or amendment.
The Town
Plan Commission's Recommendation may be overruled by the majority
vote of the full Town Board’s membership.
[Emphasis added.]
The
Plan Commission recommended against passage of the amendatory ordinance. At the October 17, 1995, meeting of the Town
Board, all three members of the Town Board were present and voted on the
amendatory ordinance. Two supervisors
voted to approve the amendment. Gute
voted against passage. Acting as
Chairperson of the Town Board, Gute refused to rule that the amendment had been
passed. Gute ruled that under the terms
of the ordinance, a unanimous vote of the Town Board was required to override
the Town Plan Commission’s recommendation to reject the amendatory ordinance.
Donald
H. Tesker, Marlene E. Tesker, Richard H. Tesker and Pamela M. Tesker (Tesker)
commenced this action seeking a writ of mandamus ordering Gute to rule that the
amendment had passed or, in the alternative, a declaratory judgment that Ordinance § 10.6 was null and
void. In granting Tesker’s motion for
summary judgment and issuing a judgment of mandamus, the circuit court found:
By its terms, the unanimity requirement of the existing
Section 10.6 of the Town’s Ordinance did not apply to the October 17 vote and
did not require that the proposed ordinance would not pass unless it received
the favorable vote of all three supervisors.
On
appeal, Gute contends that interaction of the introductory language of Ordinance § 10.1 and the unanimous vote
requirement of Ordinance § 10.6
apply to all changes to the ordinance, including the zoning map, substantive
land use provisions, and procedural requirements.
Ordinance § 10.1 provides:
Whenever the public necessity, convenience, general
welfare or good zoning practice require, the Town Board may, by ordinance,
change the district boundaries or amend, change or supplement the regulations
established by this Ordinance or amendments thereto.
Gute
argues that the entire document contains the regulations established by the
zoning ordinance and that the pertinent regulations are both substantive and
procedural. Gute takes issue with the
trial court’s unspoken conclusion that the unanimity requirement only applies
to substantive provisions of the ordinance.
He does not find any distinction in the ordinance between substantive
and procedural regulations and he asserts that there is no plain language in Ordinance § 10.6 which indicates that
the vote needed to enact a procedural amendment is any different than that
needed to enact a substantive amendment.
Tesker’s
response makes a distinction between substantive and procedural regulations;
Tesker maintains that common dictionary definitions of the word “regulations”
“includes only restrictions on the use of property within the Town.” Tesker explains that in other parts of the
ordinance “regulate” or “regulation” refer only to restrictions on the land and
not to any procedural aspects of the zoning code. Tesker reaches the conclusion that the vote needed to accept or
reject a recommendation is a political question and the Plan Commission lacks
the authority to make recommendations on political issues.
This
case is about the meaning of various sections of the ordinance. The meaning of an ordinance is a question of
law that we independently decide. See
First Nat'l Leasing Corp. v. City of Madison, 81 Wis.2d 205, 208, 260
N.W.2d 251, 253 (1977). The rules for
the construction of statutes and ordinances are the same. See County of Columbia v. Bylewski,
94 Wis.2d 153, 169 n.7, 288 N.W.2d 129, 137 (1980).
We
have repeatedly said that “the aim of all statutory construction is to discern
the intent of the legislature.” Green
Bay Packaging, Inc. v. DILHR, 72 Wis.2d 26, 35, 240 N.W.2d 422, 428
(1976). If the statute is unambiguous,
judicial rules of construction are not used; thus, we must arrive at the
legislature’s intent by giving the language its ordinary and clear
meaning. See State ex rel.
Milwaukee County v. Wisconsin Council on Criminal Justice, 73 Wis.2d
237, 241, 243 N.W.2d 485, 487 (1976).
However, where one of several interpretations of a statute is possible,
the court must ascertain the legislative intention from the language of the
statute in relation to its scope, history, context, subject matter and object
intended to be accomplished. See
State ex rel. First Nat'l Bank
& Trust Co. v. Skow, 91 Wis.2d 773, 779, 284 N.W.2d 74, 77 (1979).
At
issue is the meaning of the word “regulations” in Ordinance § 10.1.
Gute and Tesker disagree as to the meaning to be given to the word. Gute interprets “regulations” to include
both substantive and procedural provisions of the ordinance, while Tesker
limits the interpretation of “regulations” to substantive provisions. A statute, or part of it, is ambiguous if it
is capable of being understood by a reasonably well-informed person in more
than one way.[1] The test is whether “well-informed persons”
could have become confused. However,
when a case comes before this court, it is obvious that people disagree as to
the meaning to be given to a statute.
This is not controlling. The
court must determine whether “well-informed persons” could have become
confused. See Recht-Goldin-Siegal
Constr., Inc. v. DOR, 64 Wis.2d 303, 306, 219 N.W.2d 379, 380
(1974). We conclude that as used in the
ordinance “regulations” is ambiguous.
“[A]n English word may have a variety of meanings and its precise
meaning must be found in its context and relation to the subject matter.” Lukaszewicz v. Concrete Research,
Inc., 43 Wis.2d 335, 342, 168 N.W.2d 581, 585 (1969).
Our
construction of the word “regulations” follows a well-known path. Where the language is capable of more than
one interpretation, it must be read in a sense which harmonizes with the
subject matter and the general purpose and object of the ordinance. See Julius v. Druckrey,
214 Wis. 643, 649, 254 N.W. 358, 361 (1934).
In construing the ordinance, we will consider related sections in its
interpretation. See State v.
Phillips, 99 Wis.2d 46, 50, 298 N.W.2d 239, 241 (Ct. App. 1980). Furthermore, the construction of the ordinance
must give effect to its leading idea, and the entire ordinance should be
brought into harmony with the ordinance’s purpose. See Pella Farmers Mut. Ins. Co. v. Hartland Richmond Town
Ins. Co., 26 Wis.2d 29, 41, 132 N.W.2d 225, 230 (1965). As we travel down this path, our
considerations ought not leave “context” and “common sense” on the courthouse
steps. See State v. Clausen, 105 Wis.2d 231, 245-46, 313 N.W.2d
819, 826 (1982). We will address both.
We
begin by examining the statute as a whole and in reference to other statutes
dealing with the same general subject matter to discern the entire legislative
scheme. See CH2M Hill, Inc. v.
Black & Veatch, 206 Wis.2d 369, 377, 557 N.W.2d 829, 832 (Ct. App.
1996). The Town Board has the authority
to exercise the powers given to village boards, see § 60.10(2)(c), Stats., and has enacted a comprehensive
zoning ordinance under § 62.23, Stats. See §§ 60.62(1) and 61.35, Stats.
Section 62.23 is the legislative grant to municipalities of broad powers
to promote the general welfare of the community through zoning. The purpose of this broad grant of authority
from the state is summarized in § 62.23(7)(c):
Purposes in view. Such regulations shall
be made in accordance with a comprehensive plan and designed to lessen
congestion in the streets; to secure safety from fire, panic and other dangers;
to promote health and the general welfare; to provide adequate light and air,
including access to sunlight for solar collectors and to wind for wind energy
systems; to encourage the protection of groundwater resources; to prevent the
overcrowding of land; to avoid undue concentration of population; to facilitate
the adequate provision of transportation, water, sewerage, schools, parks and
other public requirements; and to preserve burial sites, as defined in s.
157.70 (1) (b). Such regulations
shall be made with reasonable consideration, among other things, of the
character of the district and its peculiar suitability for particular uses, and
with a view to conserving the value of buildings and encouraging the most
appropriate use of land throughout such city.
[Emphasis added.]
Throughout
§ 62.23, Stats., the legislature
directs that the purposes of zoning be achieved through “regulations” to be
enacted by the municipality. For
example, § 62.23(7)(a) is the general grant of power:
[T]the
council may regulate and restrict by ordinance, subject to par.
(hm), the height, number of stories and size of buildings and other structures,
the percentage of lot that may be occupied, the size of yards, courts and other
open spaces, the density of population, and the location and use of buildings,
structures and land for trade, industry, mining, residence or other purposes if
there is no discrimination against temporary structures. [Emphasis added.]
In addition, through § 62.23(7)(b), the council is given
the power to divide the city into districts and, “it may regulate and
restrict the erection, construction, reconstruction, alteration or use of
buildings, structures or land.” (Emphasis
added.) Further, “[a]ll such regulations
shall be uniform ¼.” (Emphasis
added.) See id. In the context of the enabling statutes it
is clear that “regulations” refer only to substantive objectives of land use
planning and management.
A
review of the ordinance discloses that the words “regulation” or “regulate” are
used only in conjunction with the substantive objectives of long-term land use
planning and management. The Town’s
intent in implementing the ordinance is explained in Ordinance § 1.3:
It is the general intent of this Ordinance to regulate
and restrict the use of all structures, lands and waters; regulate
and restrict lot coverage, population distribution and density, and the size
and location of all structures ¼. [Emphasis
added.]
The
Town’s explanation of the purpose of conditional use permits in Ordinance § 4.1 uses the term
“regulation” only in conjunction with land use planning and management:
The nature, character or circumstances of these
[conditional] uses are so unique or so dependent upon specific contemporary
conditions that predetermination of permissibility by right or the detailing in
the ordinance of all of the specific standards, regulations or
conditions necessary or appropriate to such permissibility is not practicable ¼. [Emphasis added.]
Finally,
in the definition section, Ordinance
§ 11.2, a “basic district” is defined as “a part of parts of the Town for which
the regulation of this Ordinance governing the use and location of land
and buildings are uniform.”[2] (Emphasis added.)
We
conclude that the word “regulations” in the ordinance must be interpreted to
mean the substantive provisions of the ordinance. As used in both § 62.23, Stats.,
and the ordinance, the word applies to use and site management and planning
within the Town of Saukville. This
interpretation harmonizes the subject matter and the general purpose and object
of the enabling statute and the ordinance.
Under the ordinance, amendments to “regulations” concerning the use and
location of land and buildings are subject to the amendment procedures outlined
in Ordinance § 10 of the
ordinance, including referral to the Plan Commission for a recommendation and
the requirement of a unanimous vote of the Town Board to overrule the
recommendation. We determine that the
amendment procedures of § 10, including the unanimity requirement of Ordinance § 10.6, do not apply to
procedural provisions—provisions of the ordinance directing how the plan
commission, the board of zoning appeals or the town board will conduct their
affairs in fulfilling the purpose of the ordinance.
We
now will use common sense to interpret the ordinance. The literal construction urged by Gute leads to an absurd and
unreasonable result: the referral to
the Plan Commission for approval of amendments to procedures governing how the
Town Board, the legislative body that created the Plan Commission, will conduct
its business. In construing an
ordinance, we must adopt a construction not subject to such an infirmity; we
must adopt a construction that will carry out the true purpose and intent of
the legislature. See State v. Retail Gasoline Dealers Ass'n,
256 Wis. 537, 544, 41 N.W.2d 637, 641 (1950).
The
purpose of a city plan commission is to develop and maintain a long-range plan
relating to the location and use of land and buildings. Scanlon v. City of Menasha, 16
Wis.2d 437, 443-44, 114 N.W.2d 791, 795 (1962), provides:
While its functions may be advisory in many respects, it
is an important function in municipal government if the municipality is to be
developed in accordance with any long-term program of city improvement and if
the city is to have a definite objective in its planning. The representatives of the public
constituting the city council frequently change and some may not be aware of
the long-term policies of the city. It
is in the public interest that each municipality have a long-term plan of
development which should be adhered to unless the common council at any particular
time desires to change it after being fully informed. Only by such method can any consistency in the plan of the future
development of a city be achieved.
As
an advisory body the Plan Commission is a creature of the Town Board and its
powers are limited by the ordinance creating it and defining its
authority. See Ledger v.
City of Waupaca, 146 Wis.2d 256, 263, 430 N.W.2d 370, 372 (Ct. App.
1988). The role and authority of the
Town of Saukville Plan Commission is found in the ordinance and in § 62.23, Stats.
The Town Board had latitude in creating the Plan Commission and defining
its advisory role. The ordinance stands
as the act of the legislative body of the Town, and it is hardly to be assumed
that the Town Board intended to clothe a mere advisory agency with the power to
veto the legislative acts of the Town Board.
See State ex rel. Tingley v. Gurda, 209 Wis. 63,
67, 243 N.W. 317, 319 (1932).
Gute
argues that the ordinance permits the Plan Commission to review the amendatory
ordinance to Ordinance § 10.6; to
make a recommendation on whether it should be accepted, rejected or modified, see
§ 10.4; and to require the unanimous vote of the Town Board to reject that
recommendation. Gute seeks to have this
court grant the Plan Commission veto power over the legislative body that
created it. See Ledger,
146 Wis.2d at 265, 430 N.W.2d at 373.
Courts must look to the common-sense meaning of a statute to avoid
unreasonable and absurd results. See
Kania v. Airborne Freight Corp., 99 Wis.2d 746, 766, 300 N.W.2d 63,
71 (1981). To adopt Gute's argument we
would have to adopt a statutory construction in derogation of common
sense. Because statutes cannot be
construed in derogation of common sense, we affirm the circuit court.
By
the Court.—Judgment affirmed.
[1] A word or term which can reasonably be understood in more than one sense or can convey more than one meaning is ambiguous. See Wisconsin Bankers Ass'n v. Mutual Sav. & Loan Ass'n, 96 Wis.2d 438, 450, 291 N.W.2d 869, 875 (1980).
[2] The ordinance uses the words “regulation” or “regulate” in other sections: § 1.4, INTRODUCTION—ABROGATION and GREATER RESTRICTIONS; § 2.2 GENERAL PROVISIONS—COMPLIANCE; § 2.5 GENERAL PROVISIONS—USE RESTRICTIONS; § 2.6 GENERAL PROVISIONS—SITE RESTRICTIONS; § 9.4 BOARD OF ZONING APPEALS—POWERS—Interpretations; and § 9.7 BOARD OF ZONING APPEALS—FINDINGS—Preservation of Intent.