Thomas G. Miller v. Zoning Board of Appeals of the Village of Lyndon Station ( 2023 )

2023 WI 46SUPREME COURT OF WISCONSIN
CASE NO.: 2021AP1764
COMPLETE TITLE: Thomas G. Miller,
Plaintiff-Respondent-Petitioner,
v.
Zoning Board of Appeals of the Village of Lyndon
Station and Village Board of Lyndon Station,
Defendants,
Larry Whaley and Kristi Whaley,
Intervenors-Appellants.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 404 Wis. 2d 539, 980 N.W.2d 295PDC No: 2022 WI App 51 - Published
OPINION FILED: June 6, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: March 13, 2023
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Juneau
JUDGE: William Andrew Sharp
JUSTICES:
DALLET, J., delivered the majority opinion for a unanimous
Court.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Kathleen Henry and Dairyland Public Interest Law,
Madison. There was an oral argument by Kathleen Henry.
For the intervenors-appellants, there was a brief filed by
Mitchell R. Olson, Zachariah J. Sibley, Michael P. Van Kleunen,
and Axley Brynelson, LLP, Madison. There was an oral argument by
Zachariah J. Sibley.
2023 WI 46NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2021AP1764
(L.C. No. 2020CV178)
STATE OF WISCONSIN : IN SUPREME COURT
Thomas G. Miller,
Plaintiff-Respondent-Petitioner,
v. FILED
Zoning Board of Appeals of the Village of
Lyndon Station and Village Board of Lyndon JUN 6, 2023
Station,
Sheila T. Reiff
Clerk of Supreme Court
Defendants,
Larry Whaley and Kristi Whaley,
Intervenors-Appellants.
DALLET, J., delivered the majority opinion for a unanimous
Court.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. Trustee Jan Miller serves
on the Village Board of Lyndon Station. She cast the deciding
vote in favor of her daughter and son-in-law's application to
amend the Village's zoning ordinance to rezone their vacant
residential property for commercial development. A local
business owner, Thomas Miller (no relation), argues that the
No. 2021AP1764
vote violated his right to due process because Trustee Miller
was partial to her daughter and son-in-law's rezoning
application. We reject this argument because there is no due
process right to impartial decision-makers when a legislative
body like the Village Board enacts, repeals, or amends a
generally applicable law like the zoning ordinance.
Accordingly, we affirm the court of appeals' decision.
I
¶2 Kristi and Larry Whaley own a 1.87 acre property in
Lyndon Station. Although most nearby properties are zoned as
commercial, their property was zoned as residential.
¶3 The Whaleys contracted to sell their property on the
condition that it be rezoned for commercial development. They
then applied for rezoning pursuant to the Village's regular
process, which proceeds as follows: The application is first
sent to the Village's five-member Plan Commission1 for a public
meeting and vote on whether to recommend the zoning change. If
the Plan Commission recommends the change, the three-member
Village Board then holds a public hearing at which it must
consider statements by the applicant and anyone else who wants
to speak. Finally, the Village Board votes on whether to amend
the zoning ordinance.
Although the Village Code provides for a seven-member Plan
1
Commission, just five members were serving at the time the
Whaleys submitted their application. See Village Code § 101.4.
2
No. 2021AP1764
¶4 Trustee Miller serves on both the Plan Commission and
the Village Board. She is also Kristi Whaley's mother and lived
with the Whaleys during the relevant period.2 Shortly after the
Whaleys filed their rezoning application, some residents
expressed concerns that Trustee Miller had a conflict of
interest.3
¶5 The Plan Commission (with Trustee Miller
participating) voted to recommend that the Village Board approve
the Whaleys' application and amend the zoning ordinance.
Subsequently, the Village Board held a public hearing where
Thomas Miller and others spoke against the proposed rezoning.
Miller owns Miller's General Store and opposed the rezoning for
several reasons, including because the prospective buyer planned
to redevelop the property into a chain store that would compete
with his business. Miller and other residents also questioned
whether Trustee Miller had a conflict of interest that should
preclude her from participating in the vote.
2The Whaleys move to strike the facts regarding Trustee
Miller's relationship to the Whaleys because they were not a
part of the certiorari record compiled by the Village. Because
we rule for the Whaleys on the merits, we deny this motion as
moot.
3The Village's attorney determined that there was no
statutory conflict of interest under Wis. Stat. § 19.59 (2021-
22) since Trustee Miller would not receive "any monetary values
[sic] from the [rez]oning of the property in question."
Although Miller argued in the circuit court that Trustee
Miller's participation in the Village Board's vote nevertheless
violated this statute, he now concedes that it did not.
Accordingly, we do not address § 19.59 further.
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No. 2021AP1764
¶6 Trustee Miller's participation was decisive in the
Village Board's 2-1 vote to grant the Whaleys' application and
amend the zoning ordinance. Miller appealed to the Village's
Zoning Board of Appeals (ZBA) arguing that "[t]here was a clear
conflict of interest involving the vote from Trustee Jan
Miller." The ZBA subsequently upheld the Village Board's vote
to amend the zoning ordinance.
¶7 Miller sought certiorari review of the ZBA's decision
pursuant to Wis. Stat. § 62.23(7)(e)10. (2021-22),4 again
alleging that Trustee Miller should not have participated in the
Village Board vote. The Whaleys intervened to defend the ZBA's
decision. The circuit court5 reversed the ZBA's decision,
concluding that Trustee Miller's participation in the Village
Board vote violated due process because she was not a fair and
impartial decision-maker.
¶8 The Whaleys6 appealed and the court of appeals
reversed. See Miller v. Zoning Bd. of Appeals, 2022 WI App 51,
¶2, 404 Wis. 2d 539, 980 N.W.2d 295. The court of appeals
assumed that Trustee Miller "was partial to her daughter and
son-in-law's rezoning request," but nonetheless concluded that
her participation in the vote did not violate due process. See
4All subsequent references to the Wisconsin Statutes are to
the 2021-22 version unless otherwise indicated.
5The Honorable William Andrew Sharp of the Juneau County
Circuit Court presided.
6Neither the Village nor the ZBA appealed the circuit
court's decision.
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No. 2021AP1764
id. ¶¶26, 33. To explain why, the court of appeals
distinguished between adjudicative acts, which involve
"application of [a] zoning ordinance to a particular set of
facts and circumstances," and legislative acts like amending a
zoning ordinance. Id., ¶¶40-41. For adjudicative acts, the
court of appeals explained that due process requires an
impartial decision-maker. Id., ¶40. But according to the court
of appeals, the same is not true of legislative determinations
like those at issue here——deciding whether to enact, repeal, or
amend a generally applicable law like a zoning ordinance. See
id., ¶¶39-42. In that context, the court of appeals held that
an impartial decision-maker is not required. See id.
II
¶9 We review the ZBA's decision pursuant to Wis. Stat.
§ 62.23(7)(e)10., which permits statutory certiorari review of
such decisions. Statutory certiorari review encompasses, among
other considerations,7 whether the ZBA "proceeded on a correct
theory of law." Moreschi v. Village of Williams Bay, 2020 WI
95, ¶15, 395 Wis. 2d 55, 953 N.W.2d 318 (quoting another
source). Proceeding on a correct theory of law includes
complying with the requirements of due process. See Marris v.
7The other considerations are: (1) whether the ZBA acted
within its jurisdiction; (2) whether its actions were
"arbitrary, oppressive, or unreasonable and represented its will
and not its judgment"; and (3) "whether the board might
reasonably make the order or determination in question based on
the evidence." See State ex rel. Ziervogel v. Wash. Cnty. Bd.
of Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401.
5
No. 2021AP1764
City of Cedarburg, 176 Wis. 2d 14, 24, 498 N.W.2d 842 (1993).
Whether the ZBA proceeded on a correct theory of law is a
question of law we review de novo while according a "presumption
of correctness and validity" to the ZBA's decision. State ex
rel. Ziervogel v. Wash. Cnty. Bd. of Adjustment, 2004 WI 23,
¶¶13-14, 269 Wis. 2d 549, 676 N.W.2d 401.
III
¶10 Miller's central claim is that Trustee Miller's
participation in the Village Board's vote to amend the zoning
ordinance violated his right to due process.8
¶11 This claim is grounded in the guarantees of procedural
due process contained in the Fourteenth Amendment to the United
States Constitution and Article I, § 1 of the Wisconsin
Constitution.9 Procedural due process bars "a deprivation by
state action of a constitutionally protected interest in life,
8 At times Miller's brief suggests that Trustee Miller's
participation in the Plan Commission's decision to recommend
that the Village Board amend the zoning ordinance also violated
due process. The relief he seeks, however, is "revers[al of]
the decision of the ZBA and [Village] Board," not the Plan
Commission. Moreover, Miller does not develop a separate
argument for why the requirements of procedural due process
would differ before the Plan Commission and the Village Board.
Accordingly, we focus solely on whether Trustee Miller's
participation in the Village Board's vote to amend the zoning
ordinance violated due process.
9 Although the text of Article I, § 1 of the Wisconsin
Constitution and the Fourteenth Amendment to the United States
Constitution differ, Miller does not argue that they provide
different procedural due process protections. Accordingly, we
treat these two provisions as coextensive for purposes of this
discussion.
6
No. 2021AP1764
liberty, or property without due process of law." Thorp v. Town
of Lebanon, 2000 WI 60, ¶53, 235 Wis. 2d 610, 612 N.W.2d 59(quoting Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458,
473, 565 N.W.2d 521 (1997)). As this language implies, in order
to establish a violation of procedural due process, a plaintiff
must demonstrate both: (1) the deprivation of a protected
liberty interest——"life, liberty, or property"——by state action
and (2) that the process he received before that deprivation
fell short of the minimum the Constitution requires. See Ky.
Dep't of Corrs. v. Thompson, 490 U.S. 454, 459-60 (1989). We
focus on the second of these two requirements because it is
dispositive of Miller's claim.
¶12 The minimum procedural protections required by the Due
Process Clause vary depending on the context. See Mathews v.
Eldridge, 424 U.S. 319, 334 (1976) ("Due process is flexible and
calls for such procedural protections as the particular
situation demands." (quoting another source)). "[I]n deciding
what the Due Process Clause requires when the State deprives
persons of life, liberty or property, the Supreme Court has long
distinguished between legislative and adjudicative action."
Jones v. Governor of Fla., 975 F.3d 1016, 1048 (11th Cir. 2020)
(citing Bi-Metallic Inv. Co. v. State Bd. of Equalization, 239
U.S. 441, 445-46 (1915)).
¶13 For adjudicative actions like deciding civil or
criminal cases, "a fair trial in a fair tribunal is a basic
requirement of due process." Caperton v. A.T. Massey Coal Co.,
556 U.S. 868, 876 (2009) (quoting In re Murchison, 349 U.S. 133,
7
No. 2021AP1764
136 (1955)). Thus, even though we presume that judges act
"fairly, impartially, and without bias," proof of a "serious
risk of actual bias can objectively rise to the level of a due
process violation." Miller v. Carroll, 2020 WI 56, ¶¶21-22, 392
Wis. 2d 49, 944 N.W.2d 542 (citing Caperton, 556 U.S. at 868).
This standard applies not only to formal judicial proceedings
but also to "administrative agencies which adjudicate." Withrow
v. Larkin, 421 U.S. 35, 46 (1975). Accordingly, when
adjudicative acts are involved, procedural due process requires
impartial decision-makers. See, e.g., 75 Acres, LLC v. Miami-
Dade County, 338 F.3d 1288, 1294 (11th Cir. 2003).
¶14 When legislative actions are at issue, however, those
affected by legislation "are not entitled to any process beyond
that provided by the legislative process." Jones, 975 F.3d at
1048 (emphasis in original). That is because "[t]he act of
legislating necessarily entails political trading, compromise,
and ad hoc decisionmaking." Rogin v. Bensalem Township, 616
F.2d 680, 693 (3d Cir. 1980). 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. And the primary check on legislators acting
contrary to the public interest when legislating is the
political process. See id. at 694; see also Bi-Metallic, 239
U.S. at 445 (explaining that the rights of those affected by
legislation "are protected in the only way that they can be in a
complex society, by their power, immediate or remote, over those
who make the rule"). Accordingly, because "a legislative
8
No. 2021AP1764
determination provides all the process that is due," partiality
on the part of legislators does not violate the Due Process
Clause. Protect Our Parks, Inc. v. Chicago Park Dist., 971 F.3d
722, 738 (7th Cir. 2020) (quoting another source); see also,
e.g., Santa Fe All. for Pub. Health & Safety v. City of Santa
Fe, 993 F.3d 802, 818 (10th Cir. 2021); Samson v. City of
Bainbridge Island, 683 F.3d 1051, 1060-61 (9th Cir. 2012); Grand
River Enters. Six Nations, Ltd. v. Pryor, 425 F.3d 158, 174 (2d
Cir. 2005).
¶15 Our cases similarly distinguish between legislative
and adjudicative acts when determining what procedural due
process protections are required. For example, in Quinn v. Town
of Dodgeville, 122 Wis. 2d 570, 364 N.W.2d 149 (1985), we held
that a town board resolution blocking a county board proposal to
amend a zoning ordinance was a legislative act.10 See id. at
584-85; see also Buhler v. Racine County, 33 Wis. 2d 137, 146,
146 N.W.2d 403 (1966) ("[Z]oning is a legislative function.").
That was because "[a]n ordinance amendment," even one that
affects only a small amount of land or a handful of people,
"changes the ordinance but does not execute or implement its
Wisconsin Stat. § 59.97(5)(e)6. (1983-84), now renumbered
10
as Wis. Stat. § 59.59(5)(e)6., gives town boards the power to
block certain county board amendments to zoning ordinances.
9
No. 2021AP1764
provisions."11 Quinn, 122 Wis. 2d at 584-85. 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. See id.¶16 Miller argues that the distinction between legislative
and adjudicative acts is not relevant to deciding whether due
process requires impartial decision-makers. Instead, he says
that our decision in Marris v. City of Cedarburg, 176
Wis. 2d 14, 498 N.W.2d 842 (1993) held that there is a due
process right to impartial decision-makers in rezoning matters,
regardless of whether the rezoning decision at issue is
legislative or adjudicative.
¶17 In Marris, a landowner applied to her local zoning
board of appeals for recognition of a legal non-conforming use
of her property. Id. at 19. She argued that she was denied "a
fair and impartial hearing under . . . common law concepts of
due process and fair play" when the zoning board's chairperson
indicated that he had prejudged her application. Id. at 24; see
also id. at 24-29. We agreed that the landowner was denied a
"Spot zoning," "the practice whereby a single lot or area
11
is granted privileges which are not granted or extended to other
land in the vicinity . . . is not illegal per se in Wisconsin."
Cushman v. City of Racine, 39 Wis. 2d 303, 306-07, 159 N.W.2d 67(1968). It may, however, violate the Fourteenth Amendment's
Equal Protection Clause under certain circumstances. See
Buhler, 33 Wis. 2d at 145-46. Nevertheless, Miller does not
allege that the Board's vote to amend the Village's zoning
ordinance constitutes spot zoning or violates the Equal
Protection Clause.
10
No. 2021AP1764
fair hearing, and observed that "[a]lthough the parties
characterize the Board's hearing as adjudicative, we need not
label these proceedings quasi-legislative or [adjudicative] to
determine whether the decision-maker must be impartial." Id. at
24 n.6. Rather, we explained that "[w]e need look only to the
characteristics of the proceeding to determine whether the
decision-maker must be impartial." Id. Because the application
required the zoning board to make "factual determinations about
an individual property owner and then apply those facts to the
ordinance," we held that an impartial decision-maker was
required. Id.¶18 Marris does not, as Miller asserts, hold that the
legislative/adjudicative distinction is irrelevant to deciding
whether due process requires an impartial decision-maker in a
particular context. On the contrary, Marris emphasized the
importance of the "characteristics of the proceeding" to
determining what process is due. See id. When Marris examined
those characteristics, it held that an impartial decision-maker
was required because "[t]he zoning decision in this case
require[d] that the [b]oard examine a specific piece of land and
the activities of a particular property owner," "engage in fact-
finding and then make a decision based on the application of
those facts to the [existing zoning] ordinance." Id. at 26.
Thus, 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
11
No. 2021AP1764
law. See id.; see also Step Now Citizens Grp. v. Town of Utica
Plan. & Zoning Comm'n, 2003 WI App 109, ¶48, 264 Wis. 2d 662,
663 N.W.2d 833 (explaining that Marris involved an adjudicative,
not legislative, decision). The approach in Marris is therefore
consistent with the one taken by Quinn, which examined the
circumstances of the specific government action at issue to
determine whether it was legislative or adjudicative. See
Quinn, 120 Wis. 2d at 585 ("An ordinance amendment is
legislation since it changes the ordinance but does not execute
or implement its provisions.").
¶19 Applying that approach to this case, we hold that the
Village Board's vote to amend the zoning ordinance and rezone
the Whaleys' property was a legislative act. The Village Board
rezoned the Whaleys' property by amending the Village's
generally applicable zoning ordinance. In other words, the
Village Board changed the law. 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. See, e.g., State v.
Outagamie Cnty. Bd. of Adjustment, 2001 WI 78, ¶41, 244
Wis. 2d 613, 628 N.W.2d 376 (stating that a decision about
whether to grant a variance excusing compliance with an
ordinance was adjudicative); Step Now, 264 Wis. 2d 662, ¶48
(describing determinations about whether to permit non-
conforming uses of property as adjudicative). Moreover, unlike
an adjudicative decision, the Village Board's amendment to the
zoning ordinance applies "prospectively, [and does] not impos[e]
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No. 2021AP1764
a sanction for past conduct." L C & S, Inc. v. Warren Cnty.
Area Plan Comm'n, 244 F.3d 601, 604 (7th Cir. 2001).
¶20 It is true, of course, that this particular amendment
came about only after the Whaleys applied for the zoning change
and affected only the Whaleys' property directly. But that does
not alter our analysis. As we explained in Quinn, rezoning 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."12 122 Wis. 2d at
584. What matters is that the Village Board made a prospective
change by enacting, repealing, or amending existing generally
applicable law. The Village Board's action was thus legislative
in nature, and for that reason, Miller was not entitled to an
impartial decision-maker. Accordingly, we affirm the court of
appeals' decision.13
By the Court.—The decision of the court of appeals is
affirmed.
In passing, Miller's reply brief suggests that we should
12
overrule Quinn. We decline to address this argument because it
is undeveloped. See Sw. Airlines Co. v. DOR, 2021 WI 54, ¶32
n.10, 397 Wis. 2d 431, 960 N.W.2d 384 (explaining that "we
generally do not address undeveloped arguments").
Because we reject Miller's claim on the merits we need
13
not address the Whaleys' argument that we should vacate the
lower courts' and ZBA's decisions because the ZBA lacked
jurisdiction to review the Village Board's vote to amend the
zoning ordinance under Wis. Stat. § 62.23(7)(e)7.b.
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No. 2021AP1764
1