2011 WI App 10
court of appeals of
published opinion
Case No.: |
2010AP70 |
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Complete Title of Case: |
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Linda Acevedo, Plaintiff-Appellant, v. City of Defendant-Respondent, City of Defendant. |
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Opinion Filed: |
December 22, 2010 |
Submitted on Briefs: |
September 16, 2010 |
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JUDGES: |
Neubauer, P.J., |
Concurred: |
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Dissented: |
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Appellant |
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ATTORNEYS: |
On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Aaron N. Halstead and David C. Zoeller of Hawks Quindel, S.C., Madison. |
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Respondent |
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ATTORNEYS: |
On behalf of the defendant-respondent, the cause was
submitted on the brief of William K. Richardson, assistant city attorney of |
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2011 WI App 10
COURT OF APPEALS DECISION DATED AND FILED December 22, 2010 A. John Voelker Acting Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF |
IN COURT OF APPEALS |
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Linda Acevedo, Plaintiff-Appellant, v. City of Defendant-Respondent, City of Defendant. |
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APPEAL
from an order of the circuit court for
Before
Neubauer, P.J.,
¶1 ANDERSON, J. On
September 23, 2009, Linda Acevedo filed a certiorari action in
¶2 Acevedo is a state licensed child day care center
operator. In March 2007, Acevedo began
operating a child day care center in the lower unit of a two-family residential
dwelling “zoned RG-1 General Residential District within the meaning of Section
3.08 of the Zoning Ordinance for the City of
¶3 In April 2009, Acevedo sought to obtain a license from the
state to operate a second child day care center in the upper unit of the
property. Beatrice Riojas, a licensing
supervisor from the Wisconsin Department of Children and Families (WDCF),
contacted Paula Blise, the City of
¶4 Blise informed Acevedo that the child day care center in the
lower unit and the proposed child day care center in the upper unit violated
the City of
¶5 On or about July 9, 2009, Acevedo filed a request for an administrative appeal with the City of Kenosha Zoning Board of Appeals. The matter came before the Board for an evidentiary hearing on August 13, 2009. After testimony and evidence was received, the Board affirmed the interpretation of the City’s zoning ordinance by the zoning administrator and the Department of Neighborhood Services and Inspections. On August 25, 2009, the Board ordered that Acevedo cease and desist all day care operations at the property and remove a ground sign on the property.
¶6 Thereafter, on September 23, 2009, Acevedo filed a certiorari
action in
¶7 Whether a complaint states a claim upon which relief can be
granted presents a question of law. Weber
v. City of Cedarburg, 129 Wis. 2d 57, 64, 384 N.W.2d 333 (1986). We review questions of law without deference
to lower courts. See id. Because Acevedo’s action comes to
this court on appeal from a motion to dismiss for failure to state a claim,
only the allegations made within the complaint are relevant to our decision. See id. In
Torres
v. Dean Health Plan, Inc., 2005 WI App 89, ¶6, 282
A motion to dismiss a complaint for failure to state a claim upon which relief can be granted tests the legal sufficiency of the complaint. All facts pleaded and reasonable inferences that may be drawn from such facts are accepted as true, but only for purposes of testing the complaint’s legal sufficiency. Nevertheless, legal inferences and unreasonable inferences need not be accepted as true. A complaint should not be dismissed as legally insufficient unless it appears certain that a plaintiff cannot recover under any circumstances. (Citations omitted.)
¶8 Certiorari is an extraordinary remedy by which courts
exercise supervisory control over inferior tribunals, quasi-judicial bodies and
officers.
¶9 Acevedo appeals the circuit court’s order dismissing the City as a party. The issue on appeal is whether the City is the proper party for a writ of certiorari challenging a decision of the Board. The City contends that Acevedo’s complaint sounding in certiorari cannot compel any action from the City and, as such, fails to state a claim against the City.
¶10 Acevedo points to City News & Novelty, Inc. v. City of
¶11 We agree with the City that both City News and Lake
City are distinguishable. 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. See State ex rel. Kulike v. Town
Clerk, 132
¶12 Additionally, both City News and
¶13 In Lake City, the City of
¶14 Again, while City News and Lake City do indeed name only the municipality, we deem it significant that in neither case did the issue of the propriety of naming the municipality arise. Given this distinction, neither case aids in our analysis.
¶15 Looking for other support, Acevedo contends in her brief that the statutory mechanism under which she took her appeal was that provided in the city planning statute, Wis. Stat. § 62.23(7)(e)10.; however, Acevedo’s complaint fails to allege that it is an action under § 62.23(7)(e)10. It instead alleges that it is an action brought pursuant to the judicial review statute, Wis. Stat. § 68.13. In any case, as with City News and Lake City, Acevedo’s position is not bolstered by the language in either statute.
¶16 Looking first at the city planning statute, Wis. Stat. § 62.23(7)(e)10. provides:
Any person or persons, jointly or severally aggrieved by any decision of the board of appeals, or any taxpayer, or any officer, department, board or bureau of the municipality, may, within 30 days after the filing of the decision in the office of the board of appeals, commence an action seeking the remedy available by certiorari. The court shall not stay proceedings upon the decision appealed from, but may, on application, on notice to the board of appeals and on due cause shown, grant a restraining order. The board of appeals shall not be required to return the original papers acted upon by it, but it shall be sufficient to return certified or sworn copies thereof. If necessary for the proper disposition of the matter, the court may take evidence, or appoint a referee to take evidence and report findings of fact and conclusions of law as it directs, which shall constitute a part of the proceedings upon which the determination of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify, the decision brought up for review.
This same statute, in a later subdivision, provides:
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.
Sec. 62.23(7)(e)14. (emphasis added). Thus, the language of § 62.23, rather than lend support to Acevedo’s argument, gives credence to the City’s. It clearly and unambiguously conveys that the mechanism for an appeal of a board of appeals decision is an action in certiorari for review of the board’s decision. Likewise, Acevedo’s reliance on Wis. Stat. § 68.13(1) goes nowhere. It, too, conveys that the decision maker, i.e., the board, is the properly named party on certification; why else would the court be instructed to “remand to the decision maker”?:
Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court’s decision.
¶17 This statutory interpretation is in harmony with the rule that
the writ of certiorari must go to the board or body whose acts are to be
reviewed, otherwise the court cannot obtain jurisdiction either of the subject
matter or the persons composing the board.
See Kulike, 132
¶18 Here, regardless of which statute Acevedo hangs her hat on, the language of both Wis. Stat. §§ 62.23(7)(e)10. and 68.13(1) conveys that the decision maker, i.e., the board, is the properly named party on certification when the board, as was the case here, made the decision from which Acevedo seeks judicial review by certiorari.
¶19 Acevedo also cites to 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), for the proposition that certiorari
review of a board’s determination may be sought “against both a municipality
and its board or commission.” Again, as
in City
News and
¶20 Finally, Acevedo cites to Pleva v. Norquist, 195 F.3d 905 (7th Cir. 1999), for the argument[2] that “[i]f the chair of a zoning board of appeals can be removed at the pleasure of a city’s mayor … the board’s existence depends on its parent municipality to such a degree that it hardly seems possible that such a board is truly a separate political body.”
¶21 Pleva is readily distinguishable on its facts. There, Pleva filed a claim in federal district court for the Eastern District of Wisconsin under 42 U.S.C. § 1983, alleging that Mayor Norquist’s politically motivated decisions to reassign the position of chairperson and not to reappoint Pleva to the Milwaukee Board of Zoning Appeals violated Pleva’s First and Fourteenth Amendment rights. Pleva, 195 F.3d at 910. Pleva also filed a claim under the ADEA, 29 U.S.C. § 621, alleging that the failure to reappoint him was due to his age. Pleva, 195 F.3d at 910-11. Finally, Pleva filed state law claims for breach of contract, tortious interference with contract, defamation, conspiracy to injure reputation, and civil conspiracy. Id. at 911. The district court dismissed Pleva’s federal claims and state contract claims under F.R.C.P. 12(b)(6) for failure to state a claim. Pleva, 195 F.3d at 911.
¶22 Thus, Pleva’s case bears no resemblance to Acevedo’s case. Moreover, Pleva—a federal case and therefore only persuasive authority—is distinguishable for the same reason the state cases are: there was no issue litigated over whether the city was a proper party and any comments about how a zoning board of appeals and a city are intertwined are, at most, dicta.
¶23 Finally, to further underscore the vain position Acevedo takes, we note that the City, through the office of its city attorney, prosecuted the case against Acevedo before the Board.
¶24 The circuit court correctly understood the distinction between the City and the Board. The circuit court properly dismissed the City as a defendant in this action on the ground that Acevedo should have commenced her certiorari action against the City of Kenosha Zoning Board of Appeals, not against the City.
By the Court.—Order affirmed.
[1] All references to the Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[2] Acevedo makes other arguments in her appellate brief. We have identified the main issues raised, and we address only those issues. See Libertarian Party v. State, 199 Wis. 2d 790, 801, 546 N.W.2d 424 (1996) (appellate court need not address issues that “lack sufficient merit to warrant individual attention”); State v. Waste Mgmt., Inc., 81 Wis. 2d 555, 564, 261 N.W.2d 147 (1978) (“An appellate court is not a performing bear, required to dance to each and every tune played on an appeal.”).