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Zelman v. Town of Erin

Court of Appeals of Wisconsin, District II

July 11, 2018

Nancy Zelman, Plaintiff-Appellant,
v.
Town of Erin, Plan Commission of the Town of Erin and Town Board of the Town of Erin, Defendants-Respondents.

          APPEAL from an order of the circuit court for Washington County: No. 2016CV628 JAMES G. POUROS, Judge. Affirmed in part; reversed in part and cause remanded.

          Before Neubauer, C.J., Gundrum and Hagedorn, JJ.

          GUNDRUM, J.

         ¶1 Nancy Zelman appeals pro se from the circuit court's grant of summary judgment to the Town of Erin, Plan Commission of the Town of Erin and Town Board of the Town of Erin (collectively "Respondents"). Zelman claims the court erred in granting summary judgment on the bases that the Town is not a proper party and her amended certiorari complaint was not timely filed. We agree the Town is not a proper party and was properly dismissed, but we conclude the amended complaint was timely filed and, therefore, summary judgment was improperly granted in favor of the Plan Commission and Town Board. Thus, we affirm in part, reverse in part, and remand to the circuit court for further proceedings.

         Background

         ¶2 On May 2, 2016, the Plan Commission approved a conditional use permit (CUP) for Zelman's neighbor to open a wine business. Zelman appealed that decision to the Town Board. During a September 19, 2016 hearing on the appeal, at which Zelman was present, two members of the board voted in favor of a motion to deny the CUP and two members voted against the motion, resulting in a failure of the motion.

         ¶3 According to an affidavit of Zelman, between September 19, 2016, and October 10, 2016, she "spoke in person, or via telephone" to the clerk for the Town, "continually requesting a copy of the final CUP"

and was informed by [the clerk] that said CUP was not finalized and signed by all required parties. That Town Board Chair Dennis Kenealy (who also serves as Chair of Defendant Plan Commission), signed said CUP on 22 September, 2016. See Plaintiff's Exhibit #13). [Zelman] was also informed by [the clerk] that Chair Kenealy could not allow said CUP to be filed with and be recorded in the Office of the Register of Deeds for Washington County, Wisconsin until the applicant … would come in to the Town of Erin office, and sign said CUP.… [The applicant's] signature was not obtained until 3 October, 2016 (see Plaintiff's Exhibit 13); and that the Secretary of the Defendant [Plan] Commission did not sign said CUP until 6 October 2016 (see Plaintiffs Exhibit 13). [Zelman] was also told by [the clerk], sometime before 6 October, 2016 ... the need for some clarification of some facts and "discrepancies" pertinent to said CUP .... That [the clerk] informed [Zelman] at each conversation that there was no final CUP to forward [Zelman]. Then [the clerk] personally called [Zelman] on or about 10 October, 2016 and informed [Zelman] that the CUP had now been finalized and signed by all required parties, and had been forwarded to the Register of Deeds, Washington County, Wisconsin for recording, and that [Zelman] could come in to the Erin Town Hall and have a copy of said CUP made, when said recorded CUP was received back by the Town of Erin clerk. [Zelman] called the Register of Deeds of Washington County, Wisconsin on 11 October, 2016 and was told that said CUP was duly recorded on 10 October, 2016 and [Zelman] then went directly to the Register of Deeds of Washington County, Wisconsin and obtained a certified copy of said CUP on 11 October, 2016.

         Exhibit 13 of Zelman's affidavit is a copy of the CUP recorded by the register of deeds. As Zelman stated in her affidavit, it was signed by Kenealy on September 22, the applicant on October 3, and the secretary of the Plan Commission on October 6, and was recorded with the register of deeds for the county on October 10.

         ¶4 On October 12, 2016, Zelman filed a certiorari action naming the Town of Erin as the only defendant. Following the filing of a motion to dismiss by the Town, asserting Zelman had named the wrong party in that the "Town" had not issued the CUP, Zelman filed an amended complaint on November 9, 2016, adding the Plan Commission and Town Board as defendants. Respondents filed another motion to dismiss, arguing the amended complaint was not timely under WIS. Stat. § 68.13(1) (2015-16)[1] because it had been filed more than thirty days after the September 19, 2016 Town Board vote on the motion to deny the CUP. The circuit court converted the motions into ones for summary judgment and afforded the parties opportunity to submit additional materials. The court subsequently granted Respondents' motions on the bases they asserted. Zelman appeals.

         Discussion

         ¶5 We review de novo a grant of summary judgment, applying the same standards as the circuit court. Smith v. Dodgeville Mut. Ins. Co., 212 Wis.2d 226, 232, 568 N.W.2d 31 (Ct. App. 1997). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987).

         The Town

         ¶6 Zelman argues the circuit court erred in dismissing her claim against the Town on the basis that it was not a proper party. Respondents disagree, asserting Zelman's amended complaint fails to state a claim upon which relief may be granted as to the Town because the Town was not a proper party in that it "issued no decisions or determinations in the instant case." Respondents are correct.

         ¶7 Whether Zelman's amended complaint fails to state a claim against the Town upon which relief may be granted because the Town is not a proper party, see M & I Marshall & Ilsley Bank v. Town of Somers, 141 Wis.2d 271, 285, 414 N.W.2d 824 (1987) (holding that appellant "failed to state a claim upon which relief may be granted" because it "failed to name the proper party"), is a legal question we review independently, see John Doe 1 v. Archdiocese of Milwaukee, 2007 WI 95, ¶12, 303 Wis.2d 34, 734 N.W.2d 827.

         ¶8 Relying on our decision in Acevedo v. City of Kenosha, 2011 WI.App. 10, ¶¶1, 6, 331 Wis.2d 218, 793 N.W.2d 500 (2010), the circuit court here properly dismissed Zelman's action against the Town. The plaintiff in Acevedo originally filed a certiorari action against only the municipality, the city, pursuant to Wis.Stat. § 68.13(1). That provision states:

Any party to a proceeding resulting in a final determination may seek review thereof by certiorari within 30 days of receipt of the final determination. The court may affirm or reverse the final determination, or remand to the decision maker for further proceedings consistent with the court's decision.

         The city moved to dismiss on the ground that the complaint failed to state a claim upon which relief could be granted because the city was not a proper party. The city asserted the plaintiff instead should have named the city's zoning board of appeals as the defendant because it was the board that had affirmed an interpretation of the city's zoning ordinance by the zoning administrator that was detrimental to the plaintiff. Acevedo, 331 Wis.2d 218, ¶¶1, 6. The plaintiff subsequently amended her complaint to add the board as a defendant. Id. The circuit court eventually granted the city's motion to dismiss it as a party. Id., ¶1.

         ¶9 On appeal, we expressed:

Certiorari is an extraordinary remedy by which courts exercise supervisory control over inferior tribunals, quasi-judicial bodies and officers. Certiorari is used to test the validity of decisions made by administrative or quasi-judicial bodies. The scope of certiorari extends to questions of jurisdiction, power and authority of the inferior tribunal to do the ...

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