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  • June 13, 2023

    Property Owners Have No Right to Impartial Re-zoning Decision

    A person opposing an application for re-zoning has no right to an impartial decision maker, the Wisconsin Supreme Court has unanimously ruled.

    Jeff M. Brown

    Main Street In A Small Midwestern Town At Sunset

    June 13, 2023 – A person opposing an application for re-zoning has no right to an impartial decision maker, the Wisconsin Supreme Court has unanimously ruled.

    In Miller v. Zoning Board of Appeals of the Village of Lyndon Station, 2023 WI 46 (June 6, 2023), the supreme court unanimously held that only adjudicative proceedings must be conducted impartially, and a re-zoning decision is a legislative rather than an adjudicative proceeding.

    Small Residential Lot

    Larry and Kristi Whaley owned a 1.87-acre vacant lot in the Village of Lyndon Station. Under the village’s zoning ordinance, the Whaleys were not allowed to commercially develop their lot because it was zoned G1-Residental.

    Jeff M. Brown Jeff M. Brown is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by email or by phone at (608) 250-6126.

    The Whaleys sold the lot, with the sale contingent upon obtaining a re-zone that would allow the lot to be commercially developed. The Whaleys submitted a re-zoning application to the village board.

    Kristi Whaley’s mother, Jan Miller, was a village board trustee at the time. Trustee Miller also sat on the village’s planning commission.

    By a 3-1 vote, the commission recommended that the village board grant the Whaleys’ re-zoning application. Trustee Miller supplied one of the three ‘Yes’ votes.

    Village Board Approves Re-Zone

    When the village board held a public hearing on the plan commission’s recommendation, Thomas Miller spoke in opposition.

    Miller owned Miller’s General Store and three rental properties near the Whaleys’ lot. Miller said he was worried that a chain store competitor would buy the Whaleys’ lot and drive him out of business.

    The village board voted 2-1 to approve the Whaleys’ re-zoning application.

    Appeals Board Affirms

    Miller appealed to the village’s zoning board of appeals (ZAB).

    He argued that the Whaleys’ application presented Trustee Miller with a conflict of interest. The ZAB voted 3-2 to uphold the village board’s approval of the Whaleys’ re-zoning application.

    Miller sought certiorari review in Juneau County Circuit Court, under Wis. Stat. section 62.23(7)(e)(10). He argued that:

    • by voting on the Whaleys’ application, Trustee Miller violated section 19. 59(1)(c);

    • Trustee Miller violated his constitutional right to a fair and impartial hearing by voting despite her conflict of interest; and

    • section 19.59(1)(d) was unconstitutional, to the extent it allowed Trustee Miller to vote on the Whaleys’ application.

    The circuit court reversed the decision of the ZAB, ruling that Trustee Miller’s participation in the village board’s proceedings violated Miller’s constitutional right to a fair and impartial hearing.

    The ZAB appealed, and the Whaleys intervened in the case.

    The Wisconsin Court of Appeals reversed the circuit court. The Millers appealed.

    Legislative vs. Adjudicative Acts

    Before the supreme court, the Miller argued that by participating in the re-zoning decision, Trustee Miller violated his procedural due process rights under the Fourteenth Amendment of the U.S. Constitution and Article 1, Section 1 of the Wisconsin Constitution.

    Justice Dallet began her opinion for the majority by explaining that for an adjudicative proceeding, a fair trial before a fair tribunal is a foundational requirement of due process. But, she pointed out, persons affected by legislative actions have no right to any process beyond the legislative process.

    Justice Dallet explained that by its nature, the legislative process involves horse trading, compromise, and impromptu decisions.

    “In other words, legislators are partial to legislation all the time; indeed, they often run for office promising to use legislative power to accomplish specific policy objectives,” Dallet wrote. “And the primary check on legislators acting contrary to the public interest when legislating is the political process.”

    Justice Dallet noted that in Quinn v. Town of Dodgeville, 122 Wis. 2d 570, 364 N.W.2d 149 (1985), the supreme court held that a town board’s adoption of a resolution that blocked a county board’s proposal to amend a zoning ordinance was a legislative act.

    As a result, she wrote: “We therefore held that due process did not require additional notice to a landowner or an opportunity to be heard beyond that already guaranteed by statute before the town board blocked the zoning amendment.”

    Interpreting Marris v. City of Cedarburg

    Miller argued that the legislative-adjudicative distinction wasn’t relevant, given the supreme court’s decision in Marris v. City of Cedarburg, 176 Wis. 2d 14, 498 N.W. 2d 842 (1993).

    In Marris, a landowner applied to the zoning board for recognition of a legal non-conforming use of her land. The chairperson of the zoning board said he had pre-judged the landowner’s application. The zoning application at issue required the zoning board to make factual determinations and apply the facts to the ordinance, so the supreme court ruled that the due process required the decision-maker to be impartial.

    But Justice Dallet explained that Marris turned on the characteristics of the administrative proceeding, rather than any notion that the legislative/adjudicative distinction was irrelevant.

    “Even though we did not label it as such, the board’s decision in Marris was adjudicative – it focused on how to apply the existing zoning law to particular facts and circumstances, not on whether to enact, alter, or repeal the existing zoning law,” Dallet wrote.

    In Miller’s case, Justice Dallet reasoned, the village board re-zoned the Whaley property by amending the generally applicable zoning ordinance.

    “In other words, the village board changed the law,” Dallet wrote. “It did not apply existing law to individual facts or circumstances, as it would if it were making an adjudicative decision like whether to grant a variance or permit a legal non-conforming use.”

    Size Doesn’t Matter

    Justice Dallet also pointed out the village board’s decision applied only prospectively and included no penalty for conduct in the past.

    That the village board’s decision directly affected only the Whaley’s property was immaterial, Dallet reasoned.

    “As we explained in Quinn, re-zoning by amending a local government’s zoning ordinance ‘does not lose its legislative character simply because the number of people affected or the size of the land is small.’”


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