Gail Moreschi v. Village of Williams Bay and Town of Linn ETZ Zoning Board of Appeals

2020 WI 95SUPREME COURT OF WISCONSIN
CASE NO.: 2018AP283
COMPLETE TITLE: Gail Moreschi,
Plaintiff-Appellant-Petitioner,
v.
Village of Williams Bay and Town of Linn ETZ
Zoning Board of Appeals, William L. Edwards and
Suzanne Edwards,
Defendants-Respondents.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 388 Wis. 2d 475,934 N.W.2d 573(2019 – unpublished)
OPINION FILED: December 30, 2020
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 8, 2020
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Walworth
JUDGE: David M. Reddy
JUSTICES:
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶23 and 24, in which ROGGENSACK,
C.J., ANN WALSH BRADLEY, ZIEGLER, and KAROFSKY, JJ., joined, and
an opinion with respect to ¶¶23 and 24, in which ANN WALSH
BRADLEY and KAROFSKY, JJ., joined. ZIEGLER, J., filed a
concurring opinion, in which ROGGENSACK, C.J., joined. REBECCA
GRASSL BRADLEY, J., filed a dissenting opinion.
NOT PARTICIPATING:
HAGEDORN, J., did not participate.
ATTORNEYS:
For the plaintiff-appellant-petitioner, there were briefs
filed by Charles W. Pollard, Edward F. Thompson and Clair, Thompson
& Pollard, S.C., Delavan. There was an oral argument by Charles W.
Pollard.
For the defendant-respondents Village of Williams Bay Town
of Linn ETZ Zoning Board of Appeals, there was a brief filed by
Thomas C. Cabush, Dustin T. Woehl and Kasdorf Lewis & Swietlik,
SC, Milwaukee. There was an oral argument by Thomas C. Cabush.
For the defendants-respondents William L. Edwards and
Suzanne Edwards, there was a brief filed by Anthony A. Coletti
and Law Offices of Anthony A. Coletti, S.C., Elkhorn. There was
oral argument by Anthony A. Coletti.
2
2020 WI 95NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2018AP283
(L.C. No. 2017CV338)
STATE OF WISCONSIN : IN SUPREME COURT
Gail Moreschi,
Plaintiff-Appellant-Petitioner, FILED
v.
DEC 30, 2020
Village of Williams Bay and Town of Linn ETZ
Zoning Board of Appeals, William L. Edwards and Sheila T. Reiff
Clerk of Supreme Court
Suzanne Edwards,
Defendants-Respondents.
DALLET, J., delivered the majority opinion of the Court with
respect to all parts except ¶¶23 and 24, in which ROGGENSACK, C.J.,
ANN WALSH BRADLEY, ZIEGLER, and KAROFSKY, JJ., joined, and an
opinion with respect to ¶¶23 and 24, in which ANN WALSH BRADLEY
and KAROFSKY, JJ., joined. ZIEGLER, J., filed a concurring
opinion, in which ROGGENSACK, C.J., joined. REBECCA GRASSL
BRADLEY, J., filed a dissenting opinion.
HAGEDORN, J., did not participate.
REVIEW of a decision of the Court of Appeals. Affirmed.
¶1 REBECCA FRANK DALLET, J. A person aggrieved by a local
zoning board's decision may commence a certiorari-review action
"within 30 days after the filing of the decision in the office of
No. 2018AP283
the board of appeals." Wis. Stat. § 62.23(7)(e)10. (2017-18).1
After the Village of Williams Bay Extraterritorial Zoning Board of
Appeals (the "Board") approved Suzanne and William Edwards'
variance request, Gail Moreschi, the Edwardses' neighbor, filed a
writ of certiorari. She filed her writ within 30 days after the
Board orally voted to grant the Edwardses a variance but well
before the Board issued and filed a written copy of its decision.
We must determine the "triggering event" for an aggrieved party's
right to certiorari review of a local zoning board of appeals'
decision. We conclude that, pursuant to § 62.23(7)(e)10.,
certiorari review of the board's decision is triggered when a
written copy of the decision is filed in the board's office.
¶2 That conclusion informs our decision regarding
Moreschi's other two claims: (1) that her due process rights were
violated by the inclusion of the Board's written decision and its
approved minutes in the certiorari record; and (2) that the Board
reached its decision under the incorrect theory of law because at
the time she filed her writ, the Board had not made the findings
required under the relevant local ordinance. We reject both
claims. The Board's written decision and approved minutes were
properly included in the certiorari record and the Board's filed
decision contains all findings required by the local ordinance.
Accordingly, we affirm the court of appeals.
1 All subsequent references to the Wisconsin Statutes are to
the 2017–18 version unless otherwise indicated.
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I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶3 Gail Moreschi owns residential property in Linn Township
next to Suzanne and William Edwards. The Edwardses tore down the
existing home on their property with plans to rebuild it, but their
plans required a variance to the setback zoning ordinance. After
Linn Township approved their building plans, the Edwardses
petitioned the Board for a zoning variance.2
¶4 On May 23, 2017, the Board held a public hearing on the
Edwardses' request. The Edwardses argued that a variance was
necessary in order to install a septic system and, because their
lot had a 12-percent slope and trees that Linn Township required
them to preserve, there was only one place they could put it. The
septic system's placement, in turn, dictated where the Edwardses
could build their home. They noted that their new home would have
"roughly . . . the same footprint" as the previous home although
it would "actually encroach[] a little bit less into the setbacks."
The Edwardses argued that their request satisfied the five
conditions necessary for the Board to grant a variance pursuant to
Village of Williams Bay Extraterritorial Zoning (ETZ) Ordinance
§ 18.1716(H)3: (1) their proposal was consistent with the local
development's purpose and intent; (2) the lot's slope constituted
The Board hears such variance requests from residents of
2
Linn, Delavan, Geneva, and Walworth Townships and the Village of
Williams Bay. Village of Williams Bay Extraterritorial Zoning
(ETZ) Ord. § 18.1700(H).
ETZ Ord. § 18.1716 contains two subsections labeled "(H)."
3
Throughout this opinion, each reference to subsec. (H) is to the
one titled "Findings."
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an exceptional circumstance; (3) they had not caused any of the
reasons necessitating the variance; (4) they could not build their
home without the variance; and (5) there was no detriment to
Moreschi's property because the Edwardses' new home would be three
feet further away from Moreschi's property line than the previous
one.4
¶5 Moreschi opposed the Edwardses' variance request on the
grounds that it failed to meet at least one of those conditions.
Specifically, she argued that, according to an affidavit of the
Walworth County Sanitarian, the Edwardses had several other
options available that would not require a variance. Those options
included moving their driveway to accommodate the septic system,
installing a smaller system, using a holding tank instead of a
septic system, or simply building a smaller home. Moreschi
asserted that because the Edwardses would not be prevented from
building any home, a variance was not necessary to preserve their
property rights.
¶6 At the hearing, the Board heard community commentary on
the Edwardses' request. Some in favor of the variance noted that
The Board's governing ordinance provides that the Board
4
"shall grant no variance" unless it finds "beyond a reasonable
doubt" that the following five conditions are satisfied: (1) the
variance is "consistent with the purpose and intent" of the local
development; (2) there are "exceptional, extraordinary, or unusual
circumstances" requiring the variance; (3) the basis for the
variance is not solely "economic gain or loss" or a "[s]elf-imposed
hardship[]"; (4) the variance is "necessary" to preserve the
applicant's "enjoyment of substantial property rights" similar to
those of neighboring properties; and (5) the variance will not
cause "substantial detriment" to others' property or the "public
interest." ETZ Ord. § 18.1716(H)(A)-(E).
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No. 2018AP283
the Edwardses' plans were consistent with attempts to "modernize"
the subdivision and that denying the Edwardses a variance would
frustrate that process. Some against it pointed out that what the
Edwardses claimed as an "exceptional circumstance," a 12-percent
slope, was not exceptional at all because "virtually all
properties" in the subdivision had similar slopes. At the end of
the hearing, the Board unanimously approved the Edwardses'
variance request by oral vote.
¶7 On June 12, 2017, Moreschi filed for a writ of certiorari
in the Walworth County Circuit Court.5 She alleged that the Board
improperly granted the Edwardses a variance because it failed to
find beyond a reasonable doubt all five conditions required under
ETZ Ord. § 18.1716(H). The circuit court granted the writ on June
28, 2017, giving the Board until July 7 to return a certified
transcript of the record. Also on June 28, Moreschi received draft
minutes of the Board's May 23 hearing via an open records request.
The draft minutes reflected the Board's unanimous approval of the
Edwardses' variance. Under the heading "Board of Appeals[']
Findings," the draft minutes indicated that the Board had approved
the variance because it "felt that there was a lack of detriment."
¶8 At the Board's next meeting on July 31, the Board issued
"approved" minutes of the May 23 hearing, which included expansive
factual findings not included in the draft minutes.6 At the July
5The Honorable David M. Reddy of the Walworth County Circuit
Court presiding. Moreschi filed her complaint pursuant to Wis.
Stat. § 801.02(5).
6 In the approved minutes, the Board's findings read:
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No. 2018AP283
31 meeting, the Board also issued a signed, written document titled
"Determination Form." The Determination Form reiterated the
factual findings from the approved minutes and included specific
conclusions on each of the five conditions required under ETZ Ord.
§ 18.1716(H):
The Board found beyond a reasonable doubt that: (1) the
requested variance is consistent with the purpose and
content of the regulations for the district and a
permitted use——a single family residence;
(2) exceptional circumstances exist re: the location of
the septic system on the lot and a 12% slope on the lot
justifying the requested variance; (3) economic hardship
is not the basis for granting the variance; (4) the
variance is necessary to preserve the property rights
and enjoyment of the property by the owner who looks to
build a single family home on the property that is
consistent with other homes in the district; and (5) the
variance will not create a substantial detriment to the
adjacent properties because the new home will be set
back further from the property lines than the pre-
existing home.
The Village of Williams Bay Extraterritorial Zoning
Board of Appeals having considered all of the testimony
and evidence presented at the hearing found beyond a
reasonable doubt that all of the facts and conditions
set forth in ETZ Zoning Ordinance Sec. 18.1716(H) exist
in favor of granting the requested variance. The Board
reviewed the application for variance and attached
documents; letter from Town of Linn approving the
variance; letters from citizens in favor and opposed to
the variance; documents presented by Attorney Thompson;
along with other documents presented at the hearing.
The Board heard testimony from Mr. Edwards and his
attorney, Mara Spring re: why the variance was
necessary. The Board heard testimony from citizens in
favor and opposed to the variance, including Attorney
Thompson on behalf of Ms. Moreschi.
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That same day, both the approved minutes and the Determination
Form were filed in the Board's office.7
¶9 The day after the Board's July 31 meeting, the Board
submitted the certiorari record to the circuit court. The record
contained the approved minutes, the Determination Form, a
recording of the May 23 hearing, the Edwardses' variance
application, and documents the parties presented at the May 23
hearing. Following briefing and a hearing, the circuit court
affirmed the Board's decision granting the Edwardses a variance.
¶10 Moreschi appealed the circuit court's decision on both
procedural and substantive grounds. Her procedural claim was that
the Board violated her due process rights when it included the
approved minutes and Determination Form in the certiorari record.
She maintained that the circuit court should have reviewed only
the documents that existed at the time she filed for a writ: the
transcript of the May 23 hearing and the draft minutes. As for
Moreschi's substantive claim, she argued that the Board made its
decision under the incorrect theory of law because at the time she
filed for a writ, the Board had not explicitly found beyond a
7 The record is unclear regarding when the Determination Form
and the approved minutes were filed in the Board's office. The
record indicates that the Board issued both documents at its July
31, 2017 meeting. It also shows that the Williams Bay Zoning
Administrator included both documents in the certiorari record
that was delivered to the circuit court on August 1. At oral
argument, the Board explained that the Zoning Administrator could
not have included the documents in the certiorari record unless
they were filed in the Board's office. We therefore accept July
31, 2017, as the date the Determination Form and the approved
minutes were filed in the office of the Board.
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No. 2018AP283
reasonable doubt that the Edwardses' variance met the five
conditions set forth in ETZ Ord. § 18.1716(H).
¶11 The court of appeals rejected both of Moreschi's claims.
Moreschi v. Vill. of Williams Bay and Town of Linn ETZ Zoning Bd.
of Appeals, No. 2018AP283, unpublished slip op. (Wis. Ct. App.
July 31, 2019). The court of appeals held that the Determination
Form was the Board's decision that was filed in the office of the
Board for purposes of triggering certiorari review. In reaching
its conclusion, the court of appeals determined that only the
Determination Form could be both filed as set forth in Wis. Stat.
§ 62.23(7)(e)10. and signed and transmitted to the applicant or
appellant as required by ETZ Ord. § 18.1716(J). It also held that
the Board did not violate Moreschi's due process rights by
including the Determination Form and approved minutes in the
certiorari record because Moreschi had no right to certiorari
review until after the Determination Form was filed. Lastly, the
court of appeals rejected Moreschi's substantive challenge,
holding that the Board's findings on the requisite five conditions
as stated in the Determination Form were "reasonable and supported
by the evidence." Id., ¶¶22–27.
¶12 On appeal to this court, Moreschi raises three issues:
(1) whether the court of appeals properly determined what
constitutes the "triggering event" for purposes of appealing the
Board's decision on a writ of certiorari; (2) whether her due
process rights were violated by the inclusion of the Determination
Form and approved minutes in the certiorari record; and (3) whether
8
No. 2018AP283
the Board failed to follow the correct theory of law in granting
the Edwardses' variance request.
II. STANDARD OF REVIEW
¶13 To determine what constitutes the triggering event for
purposes of certiorari review, we must engage in statutory
interpretation. Statutory interpretation is a question of law
that we review de novo. Myers v. DNR, 2019 WI 5, ¶18, 385
Wis. 2d 176, 922 N.W.2d 47. Statutory interpretation begins with
the language of the statute and if it "yields a plain [and] clear"
meaning, there is no need to consult extrinsic sources. State ex
rel. Kalal v. Circuit Ct. for Dane Cty., 2004 WI 58, ¶¶45–46, 271
Wis. 2d 633, 681 N.W.2d 110. When interpreting the meaning of a
specific statutory term, we "focus primarily on the language"
itself and give that term its "common, ordinary, and accepted
meaning," unless the statute provides a special or technical
definition. Id., ¶¶44–45, 53. We interpret a statute "in the
context in which it is used" and in such a way "to give reasonable
effect to every word, in order to avoid surplusage." Id., ¶46.8
¶14 The question of whether the Board violated Moreschi's
due process rights by including the Determination Form and the
approved minutes in the certiorari record is a question of law
that we review de novo. See State v. Sorenson, 2002 WI 78,
¶25, 254 Wis. 2d 54, 646 N.W.2d 354.
8 To the extent that we must also interpret ETZ Ord.
§ 18.1716, we do so under the same rules as when we interpret a
statute. See Stoker v. Milwaukee Cty., 2014 WI 130, ¶17, 359
Wis. 2d 347, 857 N.W.2d 102 ("The rules for statutory
interpretation apply to our interpretation of an ordinance.").
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¶15 Statutory certiorari review is limited to, among other
considerations, whether the Board "proceeded on a correct theory
of law."9 State ex rel. Ziervogel v. Washington Cty. Bd. of
Adjustment, 2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401. This
is also a question of law that we review de novo. Id. "A board
proceeds under a correct theory of law when it relies on the
applicable ordinances . . . and applies them properly." Edward
Kraemer & Sons v. Sauk Cty. Bd. of Adjustment, 183 Wis. 2d 1, 8-
9, 515 N.W.2d 256 (1994).
III. ANALYSIS
¶16 Moreschi urges us to hold that the triggering event for
certiorari review occurred either immediately after the Board
orally voted at the May 23, 2017 hearing or when she received the
Board's draft minutes of that hearing on June 28, 2017. She claims
that Wis. Stat. § 62.23(7)(e)3. and ETZ Ord. § 18.1716(C)(2)
support her position because they require the Board to
"immediately" file its minutes "showing the vote of each member
upon each question."10 She points to ETZ Ord. § 18.1716(H), which
The other considerations, which are not at issue in this
9
case, are whether the Board kept within its jurisdiction, whether
its action was arbitrary or unreasonable, and whether its decision
is reasonably based on the evidence. State ex rel. Ziervogel v.
Washington Cty. Bd. of Adjustment, 2004 WI 23, ¶14, 269
Wis. 2d 549, 676 N.W.2d 401.
10 Wisconsin Stat. § 62.23(7)(e)3. provides, in relevant part:
The board shall keep minutes of its proceedings, showing
the vote of each member upon each question, or, if absent
or failing to vote, indicating such fact, and shall keep
records of its examinations and other official actions,
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No. 2018AP283
requires the Board's minutes to indicate that the Board found
beyond a reasonable doubt that all variance requirements were
present.11 Moreschi further relies upon ETZ Ord. § 18.1716(J),
which states that the Board "shall decide all appeals and
applications within thirty (30) days after the final hearing and
shall transmit a signed copy of the Board's decision to the
appellant or applicant." Moreschi also asserts that the Board
violated her due process rights by "supplementing" the certiorari
record with the approved minutes and the Determination Form after
she had filed her certiorari petition. Lastly, she claims that
the Board proceeded under an incorrect theory of law because the
draft minutes do not contain the findings of fact necessary to
grant a variance under ETZ Ord. § 18.1716(H).
all of which shall be immediately filed in the office of
the board and shall be a public record.
ETZ Ord. § 18.1716(C)(2) reads as follows:
Minutes of the proceedings and a record of all actions
shall be kept by the secretary, or other designated
person, showing the vote of each member upon each
question, the reasons for the Board's determination, and
its findings of facts. These records shall be
immediately filed in the office of the Board and shall
be a public record.
11 The text of ETZ Ord. § 18.1716(H) is as follows:
No variance to the provisions of this Ordinance shall be
granted by the Board unless it finds beyond a reasonable
doubt that all of the following facts and conditions
exist and so indicates such in the minutes of its
proceedings.
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¶17 The Board counters that certiorari review was triggered
on the date the Board filed the Determination Form and the approved
minutes of the May 23 hearing. The Board issued both documents at
its July 31 meeting and it submitted the certiorari record to the
circuit court the next day. Therefore, the Board argues, both
documents were properly included as part of the certiorari record.
The Board further claims that it made its decision under the
correct theory of law because both the Determination Form and the
approved minutes reflect all findings of fact and legal conclusions
required under Wis. Stat. § 62.23(7)(e) and ETZ Ord. § 18.1716(H).
¶18 We agree with the Board that the filing of the
Determination Form was the triggering event for Moreschi's right
to certiorari review. 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. 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.
A. The Certiorari-Triggering Event
¶19 Moreschi's appeal turns on our interpretation of Wis.
Stat. § 62.23(7)(e)10.,12 which allows any person "aggrieved by any
decision of the board of appeals" to commence an action seeking
certiorari review "within 30 days after the filing of the decision
12We do not address Moreschi's arguments that rely on the ETZ
Ordinances because that reliance is misplaced. Nothing in those
ordinances affects the criteria for triggering certiorari review
under Wis. Stat. § 62.23(7)(e)10. and our interpretation of that
statute fully resolves the certiorari-triggering question.
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No. 2018AP283
in the office of the board of appeals." Specifically, we must
determine what constitutes the filing of the Board's decision for
purposes of certiorari review.
¶20 We first observe that the "filing of the decision" must
mean something more than the Board's oral decision to grant the
Edwardses a variance.13 We must give effect to every word of Wis.
Stat. § 62.23(7)(e)10. and the statutory text makes clear that
certiorari review is triggered by the filing of the decision, not
the decision itself. See State v. Matasek, 2014 WI 27, ¶¶17-19,
353 Wis. 2d 601, 846 N.W.2d 811. Focusing on the statutory text,
our next step is to define "filing."
¶21 Wisconsin Stat. § 62.23 contains no special or technical
definition of "filing." Absent a technical definition, we turn to
the dictionary definition of "filing" for its common and accepted
meaning. See Kalal, 271 Wis. 2d 633, ¶53 (explaining that a word's
ordinary meaning is "ascertainable by reference to [its]
dictionary definition"). The common dictionary definitions of
"filing" suggest that only tangible things may be filed. See
Filing, Black's Law Dictionary (11th ed. 2019) ("submitting or
lodging a document with a court clerk or record custodian"
(emphasis added)); File, Webster's Third New International
13We have previously held that a board may render its decision
either orally or in writing. See Lamar Cent. Outdoor, Inc. v. Bd.
of Zoning Appeals, 2005 WI 117, ¶¶31-35, 284 Wis. 2d 1, 700
N.W.2d 87. Here, the Board decided to grant the Edwardses'
variance at the May 23 hearing when, after gathering evidence, it
voted on the Edwardses' variance request. See Decision, Black's
Law Dictionary (11th ed. 2019) (defining "decision" as a
"determination after consideration of the facts and law.").
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Dictionary of the English Language 849 (2002) ("to deliver (as a
legal paper or instrument) . . . to the proper officer" (emphasis
added)). Therefore, the "filing of the decision in the office of
the Board" must be the delivery of a document to the Board's office
that states the Board's decision.
¶22 The parties present three possibilities for what may
constitute the filing of the Board's decision: the Board's oral
vote, the minutes of the May 23 hearing (draft or approved), and
the Determination Form. Given the above definition of "filing,"
the Board's oral vote cannot be the filing of its decision. It is
neither a tangible thing nor a document. The oral vote simply
cannot be filed.
¶23 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. See
United States v. Sahm, 2019 WI 64, ¶13, 387 Wis. 2d 259, 928
N.W.2d 545 ("Evaluation of the context of a statute is part of a
plain-meaning analysis and includes review of the language of
'surrounding or closely-related statutes.'") (quoting Kalal, 271
Wis. 2d 633, ¶46). Under Wis. Stat. § 62.23(7)(e)(3)., the Board
is required to "keep minutes of its proceedings, showing the vote
of each member upon each question" and to file those minutes in
its office. But § 62.23(7)(e)10. states that certiorari review is
triggered by the filing of the Board's decision, not its minutes.
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. See Matasek, 353 Wis. 2d 601, ¶¶17-19.
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No. 2018AP283
Reading § 62.23(7)(e)10. to allow the filing of the minutes to
trigger certiorari review would impermissibly strip the word
"decision" of any independent meaning. See id., ¶18. Therefore,
the filing of the minutes does not trigger certiorari review.
¶24 All of which leads us to the conclusion that the filing
of the Determination Form is the filing of the Board's decision.
The Determination Form checks all the requisite boxes for a filing
of the decision: it is a tangible document, it states the Board's
decision, it was filed in the Board's office, and it is a separate
document from the Board's minutes. Therefore, Moreschi's right to
certiorari review was triggered on July 31, 2017, when the
Determination Form was filed in the office of the Board.
B. Due Process
¶25 Because Moreschi's certiorari-review right was not
triggered until the Board filed the Determination Form, there is
no merit to her claim that she was denied due process by the
inclusion of the Determination Form or the approved minutes in the
certiorari record. As the court of appeals explained, Moreschi's
premature filing of her certiorari action did not preclude the
Board from reducing its decision to writing so that the decision
could be filed as required by law. Nor did Moreschi's early filing
cut off the Board's process for finalizing and approving its
meeting minutes. Indeed, as Moreschi points out, the certiorari
record must contain the "official history of [the Board's]
proceedings." See State ex rel. Augusta v. Losby, 115 Wis. 57,
59, 90 N.W. 188 (1902). Moreschi, however, provides no authority
for the proposition that prematurely filing for a writ of
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No. 2018AP283
certiorari precludes the Board from developing its official
history in accordance with its standard procedures. And nothing
in the record indicates the Board deviated from those procedures
when it issued the Determination Form and the approved minutes at
its next meeting.
¶26 We also reject Moreschi's argument that the
Determination Form constituted a "new decision." The Board's
decision was to grant the Edwardses a variance; that decision
remains unchanged in the Determination Form. The Determination
Form simply reduced the Board's decision to writing so that the
decision could be filed as required by Wis. Stat. § 62.23(7)(e)10.
Thus, both the Determination Form and the approved minutes are
properly part of the certiorari record and Moreschi's due process
claim is without merit.
C. Correct Theory of Law
¶27 Finally, we conclude that the Board reached its decision
under the correct theory of law. "A board proceeds on a correct
theory of law when it relies on the applicable ordinances . . . and
applies them correctly." Edward Kraemer & Sons, 183 Wis. 2d 1, 8-
9 (emphasis added). ETZ Ord. § 18.1716(H) provides that the Board
"shall grant no variance" unless it finds "beyond a reasonable
doubt" that five conditions are satisfied. In the Determination
Form, the Board recounted the relevant facts, applied those facts,
and concluded that each of the five conditions in ETZ Ord.
§ 18.1716(H) were satisfied beyond a reasonable doubt. Thus, the
Board relied on the correct ordinance and applied that ordinance
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No. 2018AP283
correctly.14 The Board therefore proceeded under the correct
theory of law. See id. at 8-9.
IV. CONCLUSION
¶28 We conclude that an aggrieved party's right to
certiorari review under Wis. Stat. § 62.23(7)(e)10. is triggered
when a written copy of a zoning board of appeals' decision is filed
in the office of the board. Moreschi's right to certiorari review
was therefore triggered on July 31, 2017, the date the
Determination Form was filed. Accordingly, Moreschi suffered no
due process violation when the Determination Form and approved
minutes were included in the certiorari record. Finally, we decide
that the Board acted under the correct theory of law because its
explanation in the Determination Form satisfies the requirements
of ETZ Ord. § 18.1716.
By the Court.—The decision of the court of appeals is
affirmed.
Although the Board did not discuss each condition on the
14
record at the May 23, 2017 hearing, the record makes clear that
the Board did not reach its decision until it heard presentations
from both parties regarding each condition required under ETZ Ord.
§ 18.1716(H) as well as the appropriate burden of proof. We cannot
say, after reviewing the "whole record," that the Board's decision
was not "reasonable based on the evidence before it." See
AllEnergy Corp. v. Trempealeau Cnty. Evn't & Land Use Comm'n, 2017
WI 52, ¶89, 375 Wis. 2d 329, 895 N.W.2d 368. Therefore, we must
uphold the Board's decision. See Ziervogel, 269 Wis. 2d 549, ¶13.
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No. 2018AP283.akz
¶29 ANNETTE KINGSLAND ZIEGLER, J. (concurring). I agree
with the majority opinion's conclusions in this case and its
analyses of Moreschi's due process and certiorari review
challenges. However, I do not join the majority's analysis of
Wis. Stat. § 62.23(7)(e)10. in full because the majority
inexplicably concludes that minutes of a board's meeting may never
serve as a triggering event under § 62.23(7)(e)10. As I explain
below, a board's minutes may also meet the statutory prerequisites
for certiorari review. While I write separately as to the proper
interpretation of § 62.23(7)(e)10., I reach the same conclusion as
the majority——the filing of the Determination Form is the
triggering event in this case. As a result, I respectfully concur,
and I join all of the majority opinion except ¶¶23-24.
I. ANALYSIS
A. Filing an Oral Decision and Minutes
¶30 While I agree with the majority that the Determination
Form is the triggering event in this case, I disagree with its
broad statements about a board's minutes. As such, I write
separately to demonstrate that the minutes can serve as a filed
decision for purposes of Wis. Stat. § 62.23(7)(e)10.
¶31 A board's oral vote alone cannot serve as the triggering
event. Cf. Helmrick v. Helmrick, 95 Wis. 2d 554, 556, 291
N.W.2d 582 (Ct. App. 1980) (denying appeal from an oral ruling of
a circuit court). However, if that oral vote is reduced to writing
and filed in the office of the board, then it is sufficient to
serve as a triggering event under Wis. Stat. § 62.23(7)(e)10. As
required by statute, the minutes of a board must "show[] the vote
of each member upon each question." § 62.23(7)(e)3. That means
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that the statute requires that any oral votes of a board be reduced
to writing in the minutes. Accordingly, if those minutes are filed
in the office of the board, then they can sufficiently serve as
the triggering event under § 62.23(7)(e)10.
¶32 This is consistent with how we treat appeals of oral
orders of circuit courts. See Wis. Stat. § 808.03(1). This court
has long recognized "that oral orders, although effective as soon
as they are announced, must nevertheless be reduced to writing
before an appellate court may have jurisdiction to review them."
State v. Malone, 136 Wis. 2d 250, 257, 401 N.W.2d 563 (1987).
Those oral orders, reduced to writing, must then be "filed in the
office of the clerk of court." Wis. Stat. § 807.11(2). Once an
oral order is "filed in the office of the clerk of court," the
order is entered and appealable. § 808.03(1). Appeals of final
orders are similar to certiorari review of a board's decision
because they both seek relief from a decision. Compare Wis. Stat.
§ 808.03(1) ("[A] final order of a circuit court may be appealed
as a matter of right to the court of appeals unless otherwise
expressly provided by law.") with Wis. Stat. § 62.23(7)(e)10.
("Any person . . . aggrieved by any decision of the board of
appeals . . . may . . . commence an action seeking the remedy
available by certiorari."). Accordingly, like an appeal of an
oral order of a circuit court, an oral vote of a board, reduced to
writing in the minutes and filed in the office of the board, can
serve as the triggering event for § 62.23(7)(e)10.
¶33 The majority disagrees and states that, "[i]n order to
give meaning to every word in the statute, filing the minutes and
filing the decision must refer to separate actions and separate
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documents." Majority op., ¶23. While it is true that the filing
of minutes and the filing of a decision can be separate actions
and separate documents, they can occur simultaneously in the filing
of the same document in the office of the board.1 The board,
regardless of whether a vote is taken at a meeting, must still
file the minutes. Wis. Stat. § 62.23(7)(e)3. Similarly, the board
can, as it did here with the Determination Form, file a decision
in the office of the board without any minutes. Thus, the filing
of minutes and the filing of a decision are clearly separate
actions. Notwithstanding the fact that they are separate actions,
the filing of the minutes can serve as the filing of the decision
if the minutes contain "the vote of each member upon each
question." § 62.23(7)(e)3.
¶34 The majority claims that "allow[ing] the filing of the
minutes to trigger certiorari review would impermissibly strip the
word 'decision' of any independent meaning." Majority op., ¶23.
The majority is incorrect. There will be occasions where the
minutes do not contain a decision——for example, if a board defers
1This conclusion is consistent with the language of the
statute. The only time the phrase "in the office of the board"
appears in the statute is in reference to the filing of the minutes
and the filing of a decision. Compare Wis. Stat. § 62.23(7)(e)3.
("all of which shall be immediately filed in the office of the
board . . . ." (emphasis added)) with § 62.23(7)(e)10. ("after the
filing of the decision [of the board] in the office of the board
of appeals . . . ." (emphasis added)). Reading these two
provisions together, the legislature used the exact same phrase
indicating that these two separate actions could occur
simultaneously. If the majority's position stands, it would render
these two provisions in conflict, contrary to our duty to construe
statutes harmoniously. See State v. Hemp, 2014 WI 129, ¶29, 359
Wis. 2d 320, 856 N.W.2d 811 (applying the harmonious reading
canon).
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voting on the matter to a later meeting. Similarly, there will be
occasions where a board issues a decision outside of a meeting——
as the Board did in this case with the Determination Form. As
such, allowing the minutes to serve as the triggering event does
not strip "decision" of any independent meaning.
¶35 Therefore, under the plain text of the statute, minutes
of a board's meeting can serve as a triggering event for Wis. Stat.
§ 62.23(7)(e)10., if the minutes meet the two statutory
prerequisites: a decision and that decision is filed in the office
of the board.
B. The Triggering Event Here
¶36 While I disagree with majority's analysis of Wis. Stat.
§ 62.23(7)(e)10., I agree with the conclusion that the
Determination Form serves as the triggering event in this case.
The parties argue about which of three actions may serve as the
triggering event in this case: the oral vote at the May 23 meeting,
the draft minutes of the May 23 meeting, or the Determination Form
with the approved minutes.2 Applying the two statutory
prerequisites, only the Determination Form with approved minutes
may serve as the triggering event for § 62.23(7)(e)10.
¶37 Neither the oral vote at the May 23 meeting nor the draft
minutes of the May 23 meeting may serve as the triggering event
under Wis. Stat. § 62.23(7)(e)10. As I explained above, the oral
vote alone cannot serve as the triggering event. The majority
correctly points out that an oral vote "is neither a tangible thing
nor a document" that can be filed. Majority op., ¶22. However,
Because the Determination Form and the approved minutes were
2
filed simultaneously, I refer to them as one collective document.
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Moreschi argues that the board's draft minutes that she received
on June 28, 2017, are the triggering event in this case. Despite
my conclusion above that minutes may serve as the triggering event,
Moreschi failed to show that such minutes were filed in the office
of the board. She argues that because the board was required to
file the minutes under § 62.23(7)(e)3. and Village of Williams Bay
Extraterritorial Zoning Ordinance § 18.1716(C)(2), the draft
minutes must serve as the triggering event. While the filing of
the minutes could normally serve as the triggering event, nothing
in the record supports the conclusion that the draft minutes were
actually filed in the office of the board, as the statute requires.
As such, the draft minutes of the May 23 meeting cannot serve as
the triggering event for certiorari review under § 62.23(7)(e)10.3
¶38 Thus, in this case, the triggering event must be the
Determination Form with the approved minutes. Both the
Determination Form and the approved minutes contain the board's
decision to grant the Edwards' variance request, satisfying the
first statutory prerequisite. As the board acknowledges, these
documents were filed in the office of the board on July 31, 2017,
satisfying the second statutory prerequisite. Accordingly, the
Determination Form with the approved minutes meet the two statutory
prerequisites of Wis. Stat. § 62.23(7)(e)10. and serve as the
triggering event in this case.
II. CONCLUSION
3 If Moreschi wished to compel the board to file the minutes,
she could have filed an action in mandamus in the circuit court to
compel the board to file the minutes. See State ex. rel. Milwaukee
Cnty. Pers. Rev. Bd. v. Clarke, 2006 WI App 186, ¶40, 296
Wis. 2d 210, 723 N.W.2d 141.
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¶39 I agree with the majority opinion's conclusions in this
case and its analyses of Moreschi's due process and certiorari
review challenges. But I do not join the majority's analysis of
Wis. Stat. § 62.23(7)(e)10. in full because the majority
inexplicably concludes that minutes of a board's meeting cannot
serve as a triggering event under § 62.23(7)(e)10., even though
the minutes can meet the statutory prerequisites for certiorari
review. While I write separately as to the proper interpretation
of § 62.23(7)(e)10., I reach the same conclusion as the majority—
—the filing of the Determination Form is the triggering event in
this case. As a result, I respectfully concur, and I join all of
the majority opinion except ¶¶23-24.
¶40 For the foregoing reasons, I respectfully concur.
¶41 I am authorized to state that Chief Justice PATIENCE
DRAKE ROGGENSACK joins this concurrence.
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¶42 REBECCA GRASSL BRADLEY, J. (dissenting). The Board
violated its own governing ordinance and then altered its minutes,
adding findings that were never made during the hearing. The
majority overlooks these unlawful and improper acts.1 I cannot.
I respectfully dissent.
I
¶43 The Village of Williams Bay enacted Ordinance § 18.1700,
the "Extraterritorial Zoning Ordinance for the Village of Williams
Bay."2 Section 18.1701C details the "INTENT" of the ordinance,
which, as material, provides:
It is the general intent of this ETZ Ordinance to regulate
and restrict the use of all structures, lands, and
waters; . . . and regulate and restrict size and location
of all structures so as to; lessen congestion . . .; secure
safety from fire, flooding, panic, and other dangers;
provide adequate light, air sanitation and drainage;
prevent overcrowding; avoid undue population
concentration; protect property values; further the
appropriate use of land and conservation of natural
resources[.]
The ordinance then sets forth all the rules for each zoning
district based on the classification of property. As applicable
to the Edwardses' property, the ordinance requires a Single-Family
Residence to be placed at a "[m]inimum 25 feet" from the rear
property line and at a "[m]inimum 15 feet" from the side property
line. Ord. § 18.1703M(D).
1 I use the term "majority" to refer collectively to the lead
and concurring opinions.
2 Williams Bay Ordinance § 18.1700 may be viewed at
https://www.williamsbay.org/#ordinances (last accessed on Nov. 23,
2020) (all caps omitted).
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¶44 The ordinance created the "Zoning Board of Appeals for
each Extraterritorial Zoning District" for the "purpose of hearing
appeals and applications and for granting variances[.]" Ord.
§ 18.1716(A). This section also establishes the rules the Zoning
Board must follow and directs that the Zoning Board's minutes
"shall be kept" "showing the vote of each member upon each
question, the reasons for the Board's determination, and its
findings of facts." Ord. § 18.1716(C)(2). The 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." As
pertinent to the variance sought by the Edwardses, Ordinance
§ 18.1716(H) provides:3
3 Ordinance § 18.1716(H) contains a sixth factor in subsection
(F) applicable only to C-4 ETZ Districts, the purpose of which "is
to preserve, protect, and enhance the lakes, streams, and wetland
areas in the ETZ Zoning District." Ordinance § 18.1703J. That
factor provides:
(F) Additional Requirements in C-4 ETZ Districts: No
variance shall be granted where:
(A) Filling and development contrary to the purpose
and intent of the C-4 ETZ District would result.
(B) A change in the boundaries of the C-4 ETZ
District would result.
(C) A lower degree of flood protection that a point
two (2) feet above the 100-year recurrence interval
flood for the particular area would result.
(D) Any action contrary to the provisions of
Chapter NR-116 of the Wisconsin Administrative Code
would result.
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No variance to the provisions of this Ordinance shall be
granted by the Board unless it finds beyond a reasonable
doubt that all of the following facts and conditions
exist and so indicates such in the minutes of its
proceedings.
(A) Preservation of Intent: No variance shall be
granted that is not consistent with the purpose and
intent of the regulations for the district in which
the development is located. No variance shall have
the effect of permitting a use in any district that
is not a stated permitted use, accessory use, or
conditional use in that particular district.
(B) Exceptional Circumstances: There must be
exceptional, extraordinary, or unusual
circumstances or conditions applying to the lot or
parcel, structure, use, or intended use that do not
apply generally to other properties of uses in the
same district, and the granting of the variance
should not be of so general or recurrent nature as
to suggest that this Ordinance should be changed.
(C) Economic Hardship and Self-Imposed Hardship Not
Grounds for Variance: No variance shall be granted
solely on the basis of economic gain or loss. Self-
imposed hardships shall not be considered as
grounds for the granting of a variance.
(D) Preservation of Property Rights: The variance must
be necessary for the preservation and enjoyment of
substantial property rights possessed by other
properties in the same district and same vicinity.
(E) Absence of Detriment: No variance shall be granted
that will create substantial detriment to adjacent
property or that will materially impair or be
contrary to the purpose and spirit of this
Ordinance or the public interest.
(Emphasis added.)
¶45 The record contains the transcript of the Zoning Board's
May 23, 2017 hearing. It is undisputed that during the hearing no
None of the parties claim that the Edwardses' property is located
in a C-4 ETZ Lowland Reserve Conservation District.
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member of the Board expressed any finding "beyond a reasonable
doubt" nor addressed the five findings required by the ordinance.
The transcript reveals exactly what occurred:
 The Edwardses' attorney explained they wanted a variance
due to the 12 percent slope of their lot; because of the
slope, the septic system needed to be in a certain spot,
limiting where the home could be built.
 Board Chairman Richard Tuma asked if there were any
questions.
 Board member Vernon Choyce asked whether the septic could
be a mound system instead; Mr. Edwards answered they were
told the preferred system for sanitation was "in ground."
 Several neighbors stated they were in favor of the
variance.
 Moreschi's attorney relayed the history of the case,
outlined the legal requirements the Edwardses needed to
prove to secure the variance, and discussed with the Board
whether the file was missing paperwork upon which the Town
of Linn Plan Commission had conditioned its approval.
 Board member Robert Winter asked Moreschi's attorney what
he meant when he said granting a variance would be "against
the law" and counsel explained the variance would be
against the law unless the Board would find that the five
ordinance factors were proven beyond a reasonable doubt.
 There was some discussion about the packet of documents
Moreschi provided to the Board at the last minute, whether
the ordinance reflecting the five factors was contained
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within the packet, whether the Town of Linn actually
approved or merely recommended a variance and whether it
did so without actually receiving the proper documentation.
 Moreschi spoke at length about why she opposed the
variance.
 Several other people spoke in opposition to granting the
variance.
 The Edwardses' lawyer responded to some of the comments
opposing the variance, argued that the five factors were
satisfied, and addressed the burden of proof.
 Mr. Edwards spoke, expressing it was not his intent to
cause dissension in the community and discussing his
investment in building his home.
 Two more people spoke generally about the neighborhood and
the changes happening there.
 Moreschi told the Board that Mr. Edwards said he needed a
variance in order to preserve the old trees, but since his
trees had died, the space available on his lot had changed.
 Moreschi's attorney apologized for not providing the packet
of information to the Board earlier, explaining the timing
was connected to the public notice date for the hearing.
 An individual suggested the Board hold off on issuing a
decision until it could ask the Town of Linn to determine
whether it had in fact received the information upon which
it had conditioned its approval.
 Board member Choyce asked the Building Inspector about the
Inspector's letter referring to the 12 percent slope in
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which he "said the remaining four items do not apply."
Choyce explained he did not "know what the remaining four
items are." The building inspector responded that he would
"strike that last sentence" in his letter.4
 Chairman Tuma then attempted to call for a vote on the
variance request, but Board member Winter asked if there
could be "some discussion first[.]" Winter then mentioned
he lives in the Town of Linn——in the same subdivision
involved——and how the area is changing, "[s]o what we do
today might have a lot of impact upon what's gonna happen
in the future."
 Board member Mike O'Brien said it seems like the Board
keeps trying to move forward with a decision on this but
keeps discussing the same topics.
 Board member Choyce said "the only thing that I see is the
exceptional circumstances." He said that he has built
homes in that subdivision and suggested using a mound
system would make everything work: "I've built in
Knollwood and put a house on a lot that had a significant
slope for a client, we were able to make everything work
and inclusive of the septic system by doing mounds. So
everybody's talked about holding tanks and regular septic
systems, but I haven't heard a soul talk about a mound
4 This discussion during the hearing appears to relate to the
Building Inspector's letter discussing conditions on the lot that
may provide a topographical basis to satisfy the exceptional
circumstances requirement for the variance. This does not refer
to the five ordinance factors.
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system, so I'm not certain I see that there's an
exceptional circumstance that the home, uh, be approved."
Choyce expressed not knowing how to deal with the fact that
the variance request came so late——after the foundation
had already been put in: "I would've thought this would've
all been done ahead of time. Um, but I'm not sure how to
get around that."
 Chairman Tuma then immediately asked for a motion to
approve, which Winter made, and Tuma seconded. Then Tuma
said: "All those in favor, signify by saying 'aye,'" and
all four Board members simultaneously said "aye."
¶46 Aside from Choyce's concern about the exceptional
circumstance factor, none of the Zoning Board's four members
discussed or even mentioned any of the five required ordinance
factors. Additionally, not a single Board member acknowledged the
burden of proof each member was required to apply. Although the
lawyers presented argument on the five ordinance factors as well
as the burden of proof, the Board members simply voted "aye" as a
group to granting the variance, without discussing or mentioning
the required findings and without stating that each had been proven
beyond a reasonable doubt. The original minutes from the May 23,
2017 meeting, which were sent to Moreschi on June 28, 2017,
provided:
Consider Variance
Williams and Susan Edwards, W4247 Indian Drive, Lake
Geneva, WI 53147 (Linn Township), Tax Key ICI-160
The petitioner is requesting a variance to zoning code
section 18.1703M(D) to allow a rear yard setback of 18'
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(25' required) and a side yard setback of 6' (15'
required).
Board of Appeals Decision: The Village of Williams Bay
Extraterritorial Zoning Board of Appeals, during the
meeting of March 23, 2017 for the petition of Williams
and Susan Edwards requesting a variance to the zoning
code section 18.1703M(D) to allow a rear yard setback of
18' (25' required) and a side yard setback of 6' (15'
required). Robert Winter moved to APPROVE the request.
Richard Tuma seconded the motion. A vote was taken and
carried unanimously by those present. 4 – AYE (Richard
Tuma, Vernon Choyce, Mike O'Brien, Robert Winter), 0 –
NAY. The request was APPROVED.
Board of Appeals Findings:
The Village of Williams Bay Extraterritorial Zoning
Board of Appeals felt that there was a lack of detriment
and allowed the variance.
¶47 After Moreschi filed her certiorari action in the
circuit court seeking reversal because the Zoning Board did not
make the required findings at the hearing (beyond a reasonable
doubt or otherwise), someone on the Zoning Board's behalf rewrote
the minutes and prepared a written Determination form. These new
minutes, which the Board calls the "official" or "approved"
minutes, were released on August 1, 2017, 70 days after the Board's
oral decision:
Consider Variance
Williams and Susan Edwards, W4247 Indian Drive, Lake
Geneva, WI 53147 (Linn Township), Tax Key ICI-160
The petitioner is requesting a variance to zoning code
section 18.1703M(D) to allow a rear yard setback of 18'
(25' required) and a side yard setback of 6' (15'
required).
Board of Appeals Decision: A motion was made by Robert
Winter to approve the variance requested by William and
Susan Edwards to zoning code section 18.1703M(D) to
allow a rear yard setback of 18' and north side lot set
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back of 6'. The motion was seconded by Richard Tuma. A
vote was taken and the motion carried unanimously. 4 -
Aye (Richard Tuma, Vernon Choice, Mike O'Brien, Robert
Winter), 0- Nay. The variance was granted.
Board of Appeals Findings: The Village of Williams Bay
Extraterritorial Zoning Board of Appeals having
considered all of the testimony and evidence presented
at the hearing found beyond a reasonable doubt that all
of the facts and conditions set forth in ETZ Zoning
Ordinance Sec. 18.1716(H) exist in favor of granting the
requested variance. The Board reviewed the application
for variance and attached documents; letter from Town of
Linn approving the variance; letters from citizens in
favor and opposed to the variance; documents presented
by Attorney Thompson; along with other documents
presented at the hearing. The Board heard testimony from
Mr. Edwards and his attorney, Mara Spring re: why the
variance was necessary. The Board heard testimony from
citizens in favor and opposed to the variance, including
Attorney Thompson on behalf of Ms. Moreschi.
¶48 The four members of the Board who were present at the
May 23, 2017 hearing subsequently signed and issued a written
decision, titled "Determination Form" and dated July 31, 2017.
The Determination Form explicitly references all five ordinance
factors and the proper burden of proof:
The Village of Williams Bay Extraterritorial Zoning
Board of Appeals having considered all of the testimony
and evidence presented at the hearing finds beyond a
reasonable doubt that all of the facts and conditions
set forth in ETZ Zoning Ordinance Sec. 18.1716(H) exist
in favor of granting the requested variance. The Board
reviewed the application for variance and attached
documents; letter from Town of Linn approving the
variance; letters from citizens in favor and opposed to
the variance; documents presented by Attorney Thompson;
along with other documents presented at the hearing. The
Board heard testimony from Mr. Edwards and his attorney,
Mara Spring re: why the variance was necessary. The Board
heard testimony from citizens in favor and opposed to
the variance, including Attorney Thompson on behalf of
Ms. Moreschi. The Board reviewed the Affidavit of the
Walworth County Sanitarian. The Affidavit of the
Sanitarian does not dispute the Edwards representations
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re: the location of the septic system on their property.
The affidavit indicates some possibilities re: other
septic alternatives, but does not state that any of these
alternatives can definitely be applied on the Edwards
property. The Board found beyond a reasonable doubt
that: (1) the requested variance is consistent with the
purpose and content of the regulations for the district
and a permitted use - a single family residence; (2)
exceptional circumstances exist re: the location of the
septic system on the lot and a 12% slope on the lot
justifying the requested variance; (3) economic hardship
is not the basis for granting the variance; (4) the
variance is necessary to preserve the property rights
and enjoyment of the property by the owner who looks to
build a single family home on the property that is
consistent with other homes in the district; and (5) the
variance will not create a substantial detriment to the
adjacent properties because the new home will be set
back further from the property lines than the pre-
existing home.
While the Board may control the drafting of the minutes, it cannot
control the past; it is what it was and not what the Board says.
II
¶49 In reviewing the Zoning Board's decision, this court's
review is limited to determining:
(1) whether the board kept within its jurisdiction; (2)
whether it proceeded on a correct theory of law; (3)
whether its action was arbitrary, oppressive, or
unreasonable and represented its will and not its
judgment; and (4) whether the board might reasonably
make the order or determination in question based on the
evidence.
State ex rel. Ziervogel v. Washington Cnty. Bd. of Adjustment,
2004 WI 23, ¶14, 269 Wis. 2d 549, 676 N.W.2d 401.
¶50 The Zoning Board failed to proceed on a correct theory
of law in considering the Edwardses' variance request. The Board
violated its own ordinance, which required it to make five findings
beyond a reasonable doubt and on the record at the hearing before
it had the authority to grant a variance. The transcript of the
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May 23, 2017, hearing reflects that the Board neither discussed
nor made findings on the ordinance's five factors. Chairman Tuma
let everyone who wanted to make a statement speak, and then he
immediately called for a vote. Board member Winter asked for
discussion time. During that discussion, Board member Choyce said
he had not seen evidence of exceptional circumstances, but did not
know what to do about that since the home's foundation had already
been completed. Without any discussion of the five factors or any
mention by any Board member of the burden of proof, a vote was
taken and the variance was granted.
¶51 The ordinance governing the Board required it to deny
any variance unless it (1) finds that five facts and conditions
exist beyond a reasonable doubt; and (2) "so indicates such in the
minutes of its proceedings." Ord. § 18.1716(H). In other words,
the ordinance required the Board members to make findings beyond
a reasonable doubt that "all of" the five "facts and conditions"
are present before granting any variance. In violation of the
ordinance, the Board instead granted the variance with no mention
of the five factors, which are: (1) preservation of intent; (2)
exceptional circumstances; (3) economic hardship cannot be the
sole basis for the variance, nor can self-imposed hardship be
considered as grounds for granting a variance; (4) preservation of
property rights; and (5) absence of detriment. If the Board makes
those five findings at the hearing, they must be noted in the
minutes. More importantly, if the Board neglects to make any of
these findings at the hearing, logically they cannot be indicated
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in the minutes of the proceedings and the variance cannot be
granted.
¶52 At the May 23rd hearing, not a single Board member made
a finding on preservation of intent——at all——let alone to the
beyond a reasonable doubt standard. Not a single Board member
found that the Edwardses had proven the economic hardship,
preservation of property rights, or absence of detriment factors
either, and certainly not to the proper burden. Only one Board
member seemingly found that this property did not present
exceptional circumstances, but the Board itself did not address
this finding and the Board member ultimately ignored it when he
voted to grant the variance. This is a direct violation of the
Board's own ordinance.
¶53 Although the ordinance requires the Board to include its
findings in the minutes, the Board failed to meet this requirement
too. The governing ordinance requires that "Minutes of the
proceedings and a record of all actions shall be kept by the
secretary, or other designated person, showing the vote of each
member upon each question, the reasons for the Board's
determination, and its finding of facts." Ord. § 18.1716(C)(2).
Minutes are a record of what happens at a hearing. Minutes,
Black's Law Dictionary (11th ed. 2019) ("Memoranda or notes of a
transaction, proceeding, or meeting."). They are "[a]n official
record of the proceedings of a meeting." Minutes, The American
Heritage Dictionary (5th ed. 2011). Minutes, therefore, cannot
contain things that did not actually happen at the meeting.
Despite this fundamental characteristic of meeting minutes, the
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Board's "official" minutes contain things that did not even occur
at the meeting. The transcript expressly shows the falsification
of the minutes. Of course, it is not unusual for minutes of a
meeting to be circulated in a draft form first so that members of
an organization may review the minutes to make corrections before
they are finalized and approved. This process, however, cannot
reinvent history; minutes must be limited to that which actually
occurred at the hearing. The "official" minutes created by the
Board do not reflect what really happened at the May 23rd hearing.
Instead, the minutes contain content generated in reaction to
Moreschi's certiorari petition.
¶54 The Board's "findings" in the "official" minutes say the
Board "found beyond a reasonable doubt" that all of the ordinance's
factors "exist." Board members never said anything close to this
at the hearing. The findings section also refers to the Board
having "heard testimony." To the contrary, no witnesses were
sworn. People spoke informally, giving statements in favor of or
against the variance. The rewritten minutes reflect a complete
overhaul of the draft minutes to insert things that never happened
in an attempt to rectify the Board's failure to comply with the
ordinance's dictates.
¶55 The Board's fabrication of the "official" minutes
highlights what the Board neglected to do, in violation of the
ordinance. The "draft" minutes, which Moreschi obtained in June
2017, fare no better. Those minutes contain a single finding:
"that there was a lack of detriment." No Board member, however,
discussed the lack of detriment factor and no Board member made
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any finding with respect to that factor. Those minutes do not
reflect what occurred at the May 23rd hearing either.
¶56 Instead of following the mandates of its own ordinance,
the Board granted the variance first and only after Moreschi filed
her certiorari action did the Board perfunctorily recite the facts
and conditions to justify what amounts to an unlawful exercise of
its will and not its judgment.5 The majority should have
acknowledged what actually happened instead of ratifying the
Board's acts. This court should have sent the matter back to the
Board and directed it to follow its own ordinance. The Board's
post hoc attempt to pretend it did what the ordinance required
should not relieve it of its obligation to follow the law.
¶57 I would reverse the Board's decision granting the
variance and remand the matter to the Board to act in accordance
with the law. 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. Local government must follow
the law that binds it. When a zoning board blatantly violates its
own rules, a court should not allow the decision to stand.
Instead, the majority looks the other way without bothering to
5I agree with court of appeals Judge Paul Reilly, who
concluded, in his dissent to the court of appeals opinion affirming
the Board's decision, that "[t]he Board's manufactured 'decision'
seventy days later——after it learned what it did was wrong via
Moreschi's certiorari action——invented findings that were never
made by the Board and violated due process and is not fair play."
Moreschi v. Village of Williams Bay, No. 2018AP283, unpublished
slip op., ¶35 (Wis. Ct. App. July 31, 2019).
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address the Board's farcical if not mendacious procedures. The
majority gives the Board a free pass to disregard its own governing
laws. I will not, and I therefore respectfully dissent.
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