Guse v. City of New Berlin
Guse v. City of New Berlin
Opinion of the Court
¶ 1. The Common Council of the City of New Berlin rejected Richard and Clara Guse's application to divide their property into two lots based on New Berlin Municipal Code (NBMC) § 235-26(G),
¶ 2. Guse's proposed lots are in the Hillcrest Terrace Subdivision in the City of New Berlin, which was platted in 1969. In that subdivision, the average lot is 41,265.03 square feet, with an average width of 180.91 feet. Guse proposed dividing his property into two lots that would be roughly equal in size: 29,121 square feet and 29,248 square feet. Both would have a width of 147.5 feet.
¶ 4. On June 17, 2010, Guse filed a complaint seeking certiorari review pursuant to Wis. Stat. § 236.13(5) (2009-10).
DISCUSSION
Constitutionality of NBMC § 235-26(G)
¶ 5. We begin with the constitutionality of NBMC § 235-26(G), which is a question of law that we review without deference to the trial court. See Walworth Cnty. v. Tronshaw, 165 Wis. 2d 521, 525, 478 N.W.2d 294 (Ct. App. 1991). Although our review is de novo, the ordinance is presumed to be constitutional and the party
¶ 6. New Berlin Municipal Code § 235-26(G) reads:
New lots within existing residential subdivisions may be prohibited under any of the following criteria:
(1) When the new lot area is less than the average of the existing lots within the subdivision excluding unbuildable lots; or
(2) When the new lot width is less than the average width of the existing lots within the subdivision excluding unbuildable lots; or
(3) The subdivision was platted over 25 years ago.
Citing State ex rel Humble Oil & Refining Co. v. Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964), Guse contends that § 235-26(G) is unenforceable because it does not set adequate standards for the board to consider when deciding applications.
¶ 7. In Humble Oil, our supreme court addressed a city ordinance permitting filling stations only if approved by the zoning board of appeals. Humble Oil, 25 Wis. 2d at 7. The ordinance itself provided no standards for the board to consider when coming to a decision, but a separate section of the ordinance stated that "[i]n interpreting and applying the provisions of this ordinance they shall be held to be the minimum requirements for the promotion of the public health, safety, convenience, prosperity or general welfare." Id. The Humble Oil court acknowledged that when an
¶ 8. In coming to its decision, the Humble Oil court distinguished its case from three prior Wisconsin cases upholding city ordinances. Id. at 7-9. First, in Lerner v. Delavan, 203 Wis. 32, 36, 40, 233 N.W. 608 (1930), an ordinance was upheld that required a permit to run a junk yard, but in addition specified that the applications for permits had to contain the applicant's "name, the place where the business is to be carried on, and an enumeration of the articles and merchandise to be handled therein." The court reasoned that the ordinance did not give the Council an arbitrary power to grant or deny licenses because the application requirements in effect laid out the criteria to be considered. Id. at 36.
¶ 9. Next, in Wadhams Oil Co. v. Delavan, 208 Wis. 578, 578-79, 582, 243 N.W. 224 (1932), the supreme court upheld an ordinance prohibiting the operation of gasoline stations and other businesses dealing with cars within 165 feet of the main street of a city without city council consent. Relying on Lerner, the Wadhams court concluded that the ordinance did not vest the Council with arbitrary power because the intent was that the Council should exercise sound discretion with reference to the placement of certain types of businesses. Wadhams, 208 Wis. at 581.
¶ 10. Finally, in Smith v. Brookfield, 272 Wis. 1, 3, 9-10, 74 N.W.2d 770 (1956), the court sustained an ordinance requiring the submission of location and plan of operation to the board before the board would allow
¶ 11. Reading Humble Oil in conjunction with Lemer, Wadhams, and Smith, we conclude that ordinances may vest boards with some (and even significant) discretion without being unconstitutionally vague. What an ordinance may not do is blanket the board with unfettered discretion. The problem with the ordinance in Humble Oil was that it contained absolutely no criteria to consider when deciding whether granting or denying a permit for a filling station would benefit the general welfare. See Humble Oil, 25 Wis. 2d at 8-9. That is simply not the case here.
¶ 12. New Berlin Municipal Code § 235-26(G) has much more specific standards than the commonplace template that the Humble Oil court had in front of it. In fact, it is more specific than the ordinances upheld in Lemer and Smith. In both Lemer and Smith, the challenged ordinances contained application requirements that were construed as giving guidance to the decision-making bodies in those cases. See Lerner, 203 Wis. at 36; Smith, 272 Wis. at 5, 10. In this case,
The Council's Decision
¶ 13. Guse next contends that the trial court's decision was appropriate because the City's denial of his proposed lots was arbitrary, unreasonable, and discriminatory. See Wis. Stat. § 236.13(5) ("The court shall direct that the plat be approved if it finds that the action of the approving authority or objecting agency is arbitrary, unreasonable or discriminatory."). On appeal
¶ 14. Guse separates his complaints into an argument that the Council's decision was arbitrary and unreasonable because the Guse lot is oversized compared to the lots across the street, and an argument that the Council's decision was discriminatory because the Council had previously approved similar lots in other subdivisions. The City's response to Guse's arguments is basically that Guse has not shown, and cannot show, that the Council's decision was arbitrary, unreasonable, or discriminatory simply by pointing out that another decision could have been reasonable, as well. We agree with the City.
¶ 15. First, we consider Guse's argument that the Council's decision was arbitrary. Arbitrary action is action that lacks a rational basis and is the result of an unconsidered, willful or irrational choice, not the result of the "sifting and winnowing" process. Wisconsin Professional Police Ass'n v. Public Serv. Comm'n, 205 Wis. 2d 60, 74, 555 N.W.2d 179 (Ct. App. 1996) (citing Robertson Transp. Co. v. Public Serv. Comm'n, 39 Wis. 2d 653, 661, 159 N.W.2d 636 (1968)). Guse argues that the decision of the Council was arbitrary and unreasonable because it lacked a "health, safety, or general welfare basis." Guse supports that argument by pointing out that there are two properties on his side of
¶ 16. We cannot simply look at aerial maps and say, as Guse urges, that the Council's decision was arbitrary. While the map of the subdivision indicates (at least to some degree) the relative sizes of the lots, it does not tell us when or how the lots across the street became the size that they are or even whether NBMC § 235-26(G) was in force when those lots came into existence. Furthermore, even if Guse could show that smaller lots across the street were approved under the same ordinance, we would not necessarily find that the decision was arbitrary. "Consistency ... is a virtue both in administrative and in judicial determinations, but inconsistencies in determinations arising by comparison are not proof of arbitrariness or capriciousness." Robertson, 39 Wis. 2d at 661. Here, the evidence we have shows that the Council considered the criteria set forth NBMC § 235-26(0, along with several neighbors' opposition to the lot division, and concluded that the lot division should not be approved. In other words, there was a rational basis for the Council's decision.
¶ 17. Finally, we look at Guse's discrimination argument. Guse claims that five other applications in the record show that the Council's decision was discriminatory because those lot divisions, which were ultimately approved, created lots smaller than the average in existing subdivisions and there is no evidence that NBMC § 235-26(G) was even considered. If
¶ 18. The record reflects that on October 13, 2010, the parties stipulated to have the record expanded on certiorari review to include:
other situations which the Plaintiffs assert are comparable to the situation alleged by the Plaintiffs herein provided that such additional situations involve:
(a) A land division;
(b) In an existing subdivision; and
(c) Which occurred after the Ordinance in question was passed on September 10, 2003.
Put another way, the stipulation includes all applications during the specified time period, without regard to size of the lot or age of the subdivision. Guse asserts that "[n]one of the proposed lots meet the average total square feet in the subdivision in which they were located (as in the Plaintiffs' situation)." That assertion, however, is not accompanied by a citation to the record, and the City contends that it is unsupported by the record. Our review of the applications did not show how any of the proposed lots compared in size to other lots in their respective subdivisions.
Order reversed.
We note that when looking at the City of New Berlin Municipal Code website today, the wording of § 235-26(0 has been changed from the version we have in the record. However, the parties both quote the same version in their briefs that appears in the record, so that is the version we analyze.
Throughout this opinion, we will refer to the Guses as "Guse" for ease of reference.
All references to the Wisconsin Statutes are to the 2009-10 version unless otherwise noted.
The preamble stated that the ordinance was adopted "in order to provide adequate light, pure air, and safety from fire and other dangers, to conserve the taxable value of land and buildings throughout the township, to avoid congestion in the public streets and highways and to promote the public health, safety, comfort, morals, and welfare, all in accordance with a comprehensive zoning plan." Smith v. Brookfield, 272 Wis. 1, 3, 74 N.W.2d 770 (1956).
Unlike the vague general welfare objectives in the State ex rel Humble Oil & Refining Co. v. Wahner, 25 Wis. 2d 1, 130 N.W.2d 304 (1964) ordinance, NBMC § 235-1 sets forth a very-specific and exhaustive list of general welfare criteria for the Council to consider in NBMC ch. 235 decisions. First, § 235-lA.(l) states that "[t]he purpose of this chapter is to regulate and control the division of land within the City of New Berlin in order to promote the public health, safety, prosperity, aesthetics and general welfare of the City . . .." Then, § 235-1B. states that the intent of ch. 235 is to regulate land division in order to "[ojbtain the wise use, conservation, protection, and proper development of the City's soil, water, wetland, woodland, and wildlife resources and attain a proper adjustment of land use and development to the supporting and sustaining natural resourse base;" "[ijmplement the objectives and policies of the City's Master Plan;" "[ljessen congestion in the streets and highways;" [further the orderly layout and appropriate use of land;" "[sjecure safety from fire, panic, and other dangers;" "[pjrovide adequate light and air;" [pjrevent the overcrowding of land; "[a] void undue concentration of population;" "[facilitate adequate provision for housing, transportation, water, sewerage, schools, parks, playgrounds, and other public requirements;" "[sjecure safety from flooding, water pollution, disease, and other hazards;" "[pjrevent flood damage to persons and properties and minimize expenditures for flood relief and flood control projects;" "[pjrevent and control erosion, sedimentation, and other pollution of surface and subsurface waters;" "[pjreserve natural vegetation and cover and promote the natural beauty of the City;" "[rjestrict building sites on floodlands, areas covered by poor soils, or in other areas poorly suited for development;" "[facilitate the further division of larger tracts
Guse also contends that NBMC § 235-26(G) is not enforceable because it does not relate to public health, welfare, safety, or morals as required by Wis. Stat. § 62.23(7)(a). We reject this argument. Section 62.23(7)(a) specifically states that it is to be "liberally construed in favor of the city." In addition, the concept of public welfare is broad and inclusive. State ex rel. Saveland, Park Holding Corp. v. Wieland, 269 Wis. 262, 272, 69 N.W.2d 217 (1955). "The values it represents are spiritual as well as physical, aesthetic as well as monetary." Id. (citation omitted; emphasis omitted). Maintaining average lot size, width, and age of structures in a subdivision, see § 235-26(G), are all reasonably related to the NBMC § 235-1A. objective of promoting the "prosperity, aesthetics and general welfare of the City." And that objective is related to the public welfare. See Saveland Park Holding Corp., 269 Wis. at 267.
We looked at all of the applications in the record but did not exhaustively search for comparisons between the proposed lot sizes and averages for the subdivisions in question because it is not our job to do so. See Wis. Stat. Rule 809.19(l)(e) ("The argument on each issue ... is to contain the contention of the appellant, the reasons therefore, with citations to the authorities, statutes and parts of the record relied on.").
Guse also contends that the Council's decision was discriminatory because Guse was treated differently from others who applied under the same ordinance and the only difference between his application and theirs was political pressure put on the Aldermen by other residents of Guse's subdivision. Based on our reasoning that the record does not show that Guse was treated differently from similarly situated applicants, we certainly cannot conclude that the only difference between his application and those that were approved was the neighbors' opposition. And, while we need not get to it, we observe that neighbors weigh-in on zoning applications all the time— sometimes objecting at the zoning hearing, sometimes objecting to their elected officials and sometimes both. Nothing out of the ordinary occurred here.
Reference
- Full Case Name
- Richard W. Guse and Clara Guse, Plaintiffs-Respondents v. City of New Berlin and Common Council of the City of New Berlin
- Cited By
- 3 cases
- Status
- Published