Jan. 6, 2021 – The Wisconsin Supreme Court has ruled (5-1) that an aggrieved party’s right to certiorari review of a zoning board’s decision was triggered when a written copy of the decision was filed in the board’s office, not when an oral decision was rendered.
Gail Moreschi filed a writ for certiorari review within 30 days after the Village of Williams Bay Extraterritorial Zoning Board of Appeals (zoning board) voted orally to grant a variance requested by Moreschi’s neighbor, Suzanne and William Edwards (Edwards).
Wis. Stat section 62.23(7)(e)10 says a party aggrieved by a decision of a zoning board of appeals may commence a certiorari action in circuit court “within 30 days after the filing of the decision in the office of the board of appeals.”
In Moreschi v. Village of Williams Bay and Town of Linn ETZ Zoning Board of Appeals, 2020 WI 95 (Dec. 30, 2020), a majority ruled in favor of Edwards, concluding that Moreschi had no certiorari-review rights until the zoning board filed its written decision.
Moreschi had argued that her certiorari rights triggered upon the zoning board’s oral decision, and the circuit court’s review should have been limited to the oral decision.
Edwards sought a variance to a setback zoning ordinance in order to rebuild the family home, arguing it was necessary because of limited space to install a septic system.
Joe Forward, Saint Louis Univ. School of Law 2010, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6161.
Edwards, at a public hearing in May 2017, said the request satisfied five conditions necessary for the zoning board to grant the variance, including one condition that requires a homeowner to show the home could not be built without the variance.
But Moreschi, at the public hearing, argued that Edwards had several other options to build the home without a variance, including the option to build a smaller home, move their driveway to accommodate the septic system, or use a holding tank instead. At the hearing’s conclusion, the board unanimously approved the variance by voice vote.
Less than a month later, in June, Moreschi filed a writ of certiorari in circuit court. The circuit court granted the writ. At its July meeting, the zoning board issued “approved” minutes from the May meeting, which included extensive factual findings about the variance decision that were not included in “draft” minutes provided to Moreschi.
The zoning board, at its July meeting, also issued a written “determination form,” reiterating factual findings with written conclusions on the conditions necessary to grant a variance. The board found, beyond reasonable doubt, that the conditions were met.
The zoning board filed the determination form in the board’s office and submitted the record to the circuit court. The circuit court upheld the zoning board’s decision after reviewing the written records the zoning board submitted after the July meeting.
Moreschi filed an appeal, arguing the board violated her due process rights when it submitted the determination form, approved minutes, and other materials to the circuit court after the July meeting. She also said the board had made its decision orally, by voice vote, without finding beyond reasonable doubt that the variance conditions were met. That is, she argued that the court should have reviewed the oral record.
But the appeals court ruled that Wis. Stat section 62.23(7)(e)10 was triggered by the written determination form, not the oral decision – Moreschi had no right to certiorari review prior to the filing of the written determination form and other materials.
The supreme court, in a majority opinion by Justice Rebecca Dallet, engaged in statutory interpretation to affirm the appeals court, holding that Moreschi had no right to certiorari review before the zoning board submitted its written determinations.
“We agree with the Board that the filing of the Determination Form was the triggering event for Moreschi's right to certiorari review,” wrote Justice Dallet.
“Accordingly, we conclude that Moreschi's due process rights were not violated by the Board's inclusion of the Determination Form and the approved minutes in the certiorari record,” Dallet wrote. “We also decide that the Board applied the correct theory of law in its decision to grant the Edwardses a variance as reflected in the Determination Form.”
The majority noted the statute says the right to certiorari review is triggered by “the filing of” its decision. Only “tangible things may be filed,” the opinion noted, under common dictionary definitions of the word “filing,” meaning the delivery of an actual document.
Oral votes cannot be filed, the opinion concluded. “As for the minutes, they are a tangible document, but the language of the surrounding statutory provisions suggests that they are something different than the filing of the decision,” Justice Dallet wrote.
“In order to give meaning to every word in the statute, filing the minutes and filing the decision must refer to separate actions and separate documents.”
Since the certiorari-review right was not triggered until the determination form was filed, the majority concluded there was no merit to her claim that due process was denied by the inclusion of the Determination Form or the approved minutes in the certiorari record.
Concurrence and Dissent
Justice Annette Ziegler wrote a concurring opinion, joined by Chief Justice Patience Roggensack. They agreed with the majority’s opinion, aside from any conclusion “that minutes of a board’s meeting may never serve as a triggering event” under the statute.
In this case, Justice Ziegler noted, the written determination form was the triggering event for certiorari review. “I write separately to demonstrate that the minutes can serve as a filed decision for purposes of Wis. Stat. § 62.23(7)(e)10,” she wrote.
The concurring justices concluded that a oral vote can serve as a triggering event for purposes of certiorari review “if that oral vote is reduced to writing and filed in the office of the board.” However, in this case, Ziegler noted that the zoning board did not file the “draft” minutes that it provided to Moreschi in the office of the board.
Nothing was filed until after the July meeting, Ziegler noted, when the zoning board filed the “approved” minutes as well as the determination form with conclusions.
Justice Rebecca Bradley was the lone dissenter, concluding that the zoning board “violated its own governing ordinance and then altered its minutes, adding findings that were never made during the hearing.” She said these were unlawful and improper acts.
Justice R. Bradley said the applicable ordinance prohibits the zoning board from granting a variance “unless it finds beyond a reasonable doubt that all of the following facts and conditions exist and so indicates in the minutes of its proceedings.”
At the May hearing, “none of the Zoning Board's four members discussed or even mentioned any of the five required ordinance factors” and “not a single Board member acknowledged the burden of proof each member was required to apply,” she noted.
Justice R. Bradley would have reversed the zoning board’s decision to grant the variance and remand the matter to the zoning board.
“Even though this may have resulted in the Board simply reconvening on remand, stating the required findings on the record based on the proper burden of proof, and ultimately voting the same way, at least the Board would then have followed the law the Village of Williams Bay enacted,” Justice R. Bradley wrote.
Justice Brian Hagedorn did not participate.