Weber v. Dodge County Planning & Development Department
Weber v. Dodge County Planning & Development Department
Opinion of the Court
¶ 1. Jeffrey J. Weber and JEVIC Enterprises, Inc. ("Weber"), appeal from an order dismissing their petition for certiorari review of an action of the Dodge County Planning and Development Committee. The circuit court ruled that it lacked subject matter jurisdiction because the writ was misdirected to the county's Planning and Development Department, rather than to the actual deciding agency, the Planning and Development Committee. We conclude that, under the applicable statutes and case law — and under the particular circumstances of the case — Weber could reasonably have believed that his petition was properly directed to the Department, either on its own or as the agent of the Committee. We therefore reverse the order and remand to permit Weber's action to proceed in circuit court.
¶ 2. The decision Weber sought to review was the Committee's denial of his application for approval of a final subdivision plat. Under §§ 62.23(7)(e)10 and 236.13(5), Stats., any person aggrieved by the failure to approve a plat may appeal, via certiorari, from the decision of the "approving authority." Weber's certio-rari petition, however, named the Dodge County Planning and Development Department as the respon
¶ 3. The circuit court concluded that it lacked jurisdiction to entertain the petition because it had not been served on the deciding agency, and dismissed the petition. In so ruling, the court relied on a 1907 case, State ex rel. Kulike v. Town Clerk, 132 Wis. 103, 111 NW. 1129 (1907), where the supreme court stated:
Except where specially provided by statute . . . the writ of certiorari cannot properly run to a mere ministerial officer simply because he is the custodian of the records, but must go to the board or body whose acts are sought to be reviewed, otherwise the court cannot obtain jurisdiction either of the subject matter or of the persons composing such board or body.
¶ 4. Weber, emphasizing the "except where specially provided by statute" clause in the quoted excerpt, argues that the following statement in § 236.13(5), Stats., constitutes an exception to the Kulike rule: "Where the failure to approve is based on an unsatisfied objection, the agency making the objection shall be made a party to the action." He says the phrase "agency making the objection" is ambiguous and confusing, and would, on the facts of this case, lead him to reasonably believe that the "agency making the objection" was the Department, and not the Committee, and thus service on the Department was proper.
¶ 5. We disagree. First, Weber doesn't indicate how or where the Department objected to approval of his plat. Indeed, a copy of the Department's "Staff Report" to the Committee regarding Weber's application contains an "Advisory" recommending approval of the plat with certain conditions. Second, even if the
¶ 6. Weber begins by pointing out that all of his inquiries to the county regarding the plat and his approval application were directed to the Department, and that all correspondence from the county to him on the subject was not from the Committee, but from the Department, on its own letterhead. Indeed, the final order denying his application was on the Department's letterhead and was sent to Weber by the Department, along with a notice that he had the right to seek review of the order in circuit court. Finally, while the Committee is a functioning body — a standing committee of the Dodge County Board of Supervisors — it doesn't have an office, a staff (other than employees of the Department and/or other county employees) or any real, tangible identity apart from its relationship to the board.
¶ 7. Among the cases cited by Weber is Kyncl v. Kenosha County, 37 Wis. 2d 547, 155 N.W.2d 583 (1968), a condemnation case where the applicable statute, § 32.05(11), STATS., required that the "condemnor"
¶ 8. The issue was revisited in a more recent case, DOT v. Peterson, 218 Wis. 2d 473, 581 N.W.2d 539 (Ct. App. 1998), another condemnation appeal which was dismissed because the appeal papers were served on the attorney general, rather than the actual con-demnor (the Department of Transportation). Citing Kyncl, we said in Peterson that where the statute was ambiguous — that is, under Kyncl, where it does not specifically direct service on a particular agency — and where "the statute and circumstances can ... be reasonably construed to support the [appellants'] interpretation, they are entitled to determination of their appeal on the merits."
¶ 9. We think the same rule should apply where an ambiguity in service requirements is created through the interaction of the applicable statutes,
By the Court. — Order reversed.
All the Department offered in its brief regarding the existence and identity of the Committee is that the zoning ordinance and the names and home addresses of Committee members are considered to be public information that would be "available upon request."
The applicable statute in DOT v. Peterson, 218 Wis. 2d 473, 581 N.W.2d 539 (Ct. App. 1998), § 32.05(9)(a), Stats., requires notice of the application to be given to "all... persons" who were parties to the award, and "person" is defined to include "the state, county, town, village [or] city . . . ." Section 32.01, STATS. The appellants in Peterson argued that the statute was ambiguous at best and that because it did not specifically include state agencies or departments in the definition of "per
We also said in Peterson that "th[e] ambiguity was enhanced in this case because the 'State of Wisconsin' is the government entity that appears on the award of damages." Id. at 485, 581 N.W.2d at 543. In this case, as we have indicated above, all correspondence from the Committee to Weber, together with the final order itself, came to Weber from the Department.
In Peterson II, the supreme court repeated the Kyncl rule advocating a liberal construction of applicable statutes so as to permit a determination on the merits of the petitioner's appeal, and went on to state:
[I]t is important that citizens not be defeated in their redress of grievances by the maze of governmental entities. A person aggrieved by an administrative decision should not have to guess which governmental entity to name and serve as the respondent in proceedings for judicial review.
DOT v. Peterson, No 97-2718, slip op. at 12 (S. Ct. June 8, 1999) (quoting from Sunnyview Village, Inc. v. DOA, 104 Wis. 2d 396, 412, 311 N.W.2d 632, 639 (1981)). See also McDonough v. State Dep't of Workforce Dev., No. 97-3711-FT, slip op. (S. Ct. June 30, 1999) (restating rule that with ambiguous statutes — whether the ambiguity is created by the language of the statute itself or by the interaction of two or more statutes — the dispute is to be resolved in favor of the person seeking to appeal the agency's determination).
As indicated above, the statutes providing for appeals from plat approvals or rejections, §§ 62.23(7)(e)10 and
Case-law data current through December 31, 2025. Source: CourtListener bulk data.