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07/01/83 LEAGUE WOMEN VOTERS APPLETON v. OUTAGAMIE

July 1, 1983

LEAGUE OF WOMEN VOTERS OF APPLETON, INC.; SAVE DOWNTOWN COMMITTEE, JOHN GILMOUR D/B/A GILMOUR BROTHERS MUSICK GALLERY, JOHN C. ZIMMERMAN D/B/A CONKEY'S BOOK STORE, FRANKLIN A. HARDT D/B/A IRON RAIL, INC., BERNARD PEARLMAN D/B/A BARRETT'S, MICHAEL P. HALEY D/B/A MICHAEL'S BOOKSTORE OF APPLETON, HOWARD L. GILBERTSON D/B/A HOBBY WORLD, DAVID N. WEILAND D/B/A WICKMAN FURNITURE CO., WILLIAM R. SCOTT D/B/A MOLE HOLE OF APPLETON, LTD., LAWRENCE P. HAUSER D/B/A GABRIEL FURNITURE CO. AND PILGRIM SHOP, RAY GEVELINGER D/B/A GABRIEL FURNITURE CO. AND PILGRIM SHOP, JOHN AND BARBARA DISHER D/B/A CAMPBELL STORES, ELIZABETH L. HOOVER D/B/A PEERLESS LAUNDERERS AND CLEANERS, INC., JOHN CONWAY D/B/A JOHN CONWAY HOTEL CO., KATHLEEN M. DEFURIO D/B/A T-SHIRT EMPORIUM, CHARLES POND D/B/A POND SPORT SHOP, INC., PAUL GUYETTE AND MARY GUYETTE D/B/A GUYETTE'S LTD., JAMES O. HAUERT D/B/A HAUERT'S PET AND GARDEN STORE; MYLAN SINCLAIR D/B/A APPLETON PHARMACY, ROBERT A. HICKINBOTHAM D/B/A FOX VALLEY RADIO & TV, PLAINTIFFS-APPELLANTS-PETITIONERS,
v.
OUTAGAMIE COUNTY; OUTAGAMIE COUNTY BOARD AGRICULTURE, EXTENSION, EDUCATION & ZONING COMMITTEE JACK WIGNALL, CARL JANKE, GERALD P. KAVANAUGH, AND FRANCIS J. COONEN, IN THEIR CAPACITY AS COMMITTEE MEMBERS, AND FRANK M. CHARLESWORTH, IN HIS CAPACITY AS OUTAGAMIE COUNTY ZONING ADMINISTRATOR, AND GENERAL GROWTH DEVELOPMENT CORPORATION, A FOREIGN CORPORATION, DEFENDANTS-RESPONDENTS



Review of a decision of the Court of Appeals. Affirming Heffernan, J.

The opinion of the court was delivered by: Heffernan

This is a review of an unpublished court of appeals decision dated June 22, 1982, affirming an August 6, 1981, order of the circuit court for Outagamie county, Judge Urban P. Van Susteren, which dismissed the plaintiffs' complaint.

On this review two issues are presented: The first is whether the court of appeals was correct in holding that the complaint was properly dismissed because the plaintiffs failed to exhaust their administrative remedies and to pursue judicial review by statutory certiorari. We conclude that the court of appeals was incorrect. The second issue is whether the plaintiffs were entitled to invoke the provisions of ch. 68, Stats., to require Outagamie county to afford them a contested case hearing on the question of whether certain conditional use permits would be granted. We conclude that the plaintiffs had no right to invoke the provisions of ch. 68, and, therefore, affirm the dismissal of their complaint.

This controversy arises out of plans by defendant General Growth Development Corporation to construct a shopping mall in the town of Grand Chute, Outagamie county, about two miles from the city of Appleton. Two navigable streams cross the site of the proposed mall. Pursuant to Chapter 16 of the Outagamie County Ordinances, the "Outagamie County Shoreland Protection Ordinance" (Shoreland Ordinance), General Growth applied for six conditional use permits. *fn1 These permits were required for General Growth to relocate the two streams, construct two bridges, construct a storm-water detention basin, and perform grading on the banks of both streams, all in preparation for constructing the shopping mall.

The decision whether to issue conditional use permits is made by defendant zoning committee, a committee of the Outagamie County Board, after a public hearing. Sec. 16.65, Outagamie Co. Ord. The hearing on General Growth's application was scheduled for March 24 and 25, 1981. The plaintiffs, who oppose construction of the mall, requested, in a letter, that the public hearing on General Growth's application be conducted as a contested case hearing, with testimony under oath, the right to cross-examine witnesses, and full discovery rights. Outagamie county responded that there could be no contested case hearing because the zoning committee would be performing a legislative function.

The League of Women Voters of Appleton, Inc., the Save Downtown Committee, Inc., and nineteen named individuals with business interests in downtown Appleton commenced this action on March 17, 1981. They requested a declaratory judgment holding that ch. 68, Stats., required a contested case hearing to be held during the administrative process of deciding whether to grant conditional use permits under the Shoreland Ordinance. They also requested an injunction prohibiting the zoning committee from proceeding pending a decision in this case.

On March 23, 1981, a hearing was held, before Judge Van Susteren, on plaintiffs' motion for a temporary restraining order to delay the zoning committee hearing. The attorney for Outagamie county, and its related defendants, took the position that ch. 68, Stats., did not apply and that the plaintiffs' only recourse, if the conditional use permits were granted, was to circuit court. The trial court correctly pointed out that, if ch. 68 applied, the contested case procedures could properly be granted at either the hearing before the zoning committee or at a later hearing on administrative appeal. Secs. 68.10 and 68.11. *fn2 The court denied the temporary restraining order and stated that the zoning committee could proceed with its planned informal hearing. If the zoning committee denied General Growth's applications, the plaintiffs would have no reason to pursue their complaint. The court directed that, if the zoning committee granted the permits, the plaintiffs should return to court for a determination whether ch. 68 required that they then be given the right to an administrative appeal with contested case procedure.

The zoning committee held an informal public hearing on March 24 and 25, 1981. The zoning committee approved the issuance of the conditional use permits at a public meeting in April 1981.

Another hearing was held before Judge Van Susteren on May 12, 1981. The parties produced testimony concerning the nature of the zoning committee hearing and decision. The trial court made the transcripts of the March 24 and 25 zoning committee hearings part of the record in this case.

Judge Van Susteren ultimately concluded that the plaintiffs were not entitled to a contested case hearing under ch. 68, Stats, and an order was entered dismissing the complaint. Plaintiffs appealed from this order. *fn3

The court of appeals, sua sponte, raised the issue of exhaustion of administrative remedies. It affirmed the trial court's dismissal on the ground that plaintiffs had failed to exhaust their administrative remedies. This court granted the plaintiffs' petition for review.

The court of appeals held that the plaintiffs had a right to appeal the zoning committee's decision to the County Board of Adjustment pursuant to sec. 59.99, Stats., and sec. 16.10(1) and (3) of the Shoreland Ordinance and had failed to do so.

The general rule is that judicial relief will be denied until the parties have exhausted their administrative remedies. Nodell Inv. Corp. v. Glendale, 78 Wis. 2d 416, 424, 254 N.W.2d 310 (1977).

"The rule of exhaustion of administrative remedies is a doctrine of judicial restraint which the legislature and the courts have evolved in drawing the boundary line between ...


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