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State ex Rel. Russell v. Board of Appeals

Supreme Court of Wisconsin
May 13, 1947
27 N.W.2d 378 (Wis. 1947)


April 8, 1947. —

May 13, 1947.

APPEAL from a judgment of the circuit court for Sauk county: ALVIN C. REIS, Circuit Judge. Reversed.

For the appellants there was a brief by Hill, Miller Hill of Baraboo, and oral argument by James H. Hill, Jr.

For the respondents there was a brief by Langer Cross of Baraboo, and oral argument by H. M. Langer.

Petition for certiorari filed on April 18, 1945, to test the jurisdiction of the Board of Appeals of the village of Prairie du Sac in granting a building permit to Roy G. Curtis notwithstanding a rezoning ordinance. From the judgment, entered June 18, 1946, affirming the granting of the permit and awarding costs against the plaintiffs, plaintiffs appeal.

Roy G. Curtis purchased certain real estate in the village of Prairie du Sac upon which he intended to build a repair shop. On July 11, 1944, he filed a written application for a building permit, and soon thereafter he began assembling building materials on his property. At that time the land in question was in a business or service district. The village clerk and building inspector denied Curtis' application for the building permit. On September 28, 1944, Curtis filed a notice of appeal from this decision to the Board of Appeals. This notice, later found, was mislaid at the time and a second one filed on March 6, 1945. On October 10, 1944, which was after Curtis' purchase of the property, the village board amended the zoning ordinance so that the district in which Curtis' land was located was changed from a service district to a residence district. Notwithstanding this change, the Board of Appeals on March 9, 1945, granted Curtis a building permit.

The pertinent provisions of the village zoning ordinance, 12.17, are as follows:

Art. IX: "Appeal: Appeal from the ruling of the building inspector concerning the enforcement of the provisions of this ordinance may be made to the Board of Appeals within such time as shall be prescribed by the board by general rule. The appellant shall file with the building inspector and with the Board of Appeals a notice of appeal, specifying the grounds thereof. The building inspector shall forthwith transmit to the Board of Appeals all the papers constituting the record upon which the action appealed from was taken."

Art. IX (7): "Where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of this ordinance, the Board of Appeals shall have the power in passing upon appeals to vary or modify any of these rules, regulations or provisions relating to the construction . . . of buildings to secure public safety and to obtain substantial justice. Provided, however, that no such variance or modification shall have the effect of allowing in any district uses prohibited in that district."

Under the writ of certiorari sued out by Clayton Russell and Edna Russell, his wife, and Theo. C. Berg and Lena Berg, his wife, the circuit court affirmed the action of the Board of Appeals in granting the permit. The court said:

"Curtis had bought the property in good faith, spent money on it, hauled building materials on the property. The board was entitled to, grant him a permit."

The court further held that Curtis had made substantial compliance with the ordinance in respect to giving notice of appeal (art. IX) and that the Board of Appeals, by virtue of art. IX (7), could waive the strict requirements of the ordinance.

Curtis did not comply with art. IX of the zoning ordinance in entering his appeal, for he did not file the notice required, specifying the grounds for appeal. The ordinance requires a notice in the nature of a pleading setting forth a cause. The notices Curtis filed merely requested consideration by the board of the application which had been denied by the building inspector. Neither notice specified the grounds for appeal. Art. IX of ordinance 12.17 makes the allegation of the grounds for appeal a vital part of the appeal, and since that requirement of the ordinance was not met, the matter was not before the Board of Appeals.

There is an indication in the trial court's decision that all the parties concerned in this case knew the reason for Curtis' appeal even though it was not stated and that therefore the defect in his appeal should not stand in his way. Although it may be true that in this particular case there was such general knowledge of the reason for the appeal, this court cannot in effect change legislation which requires a written notice of appeal specifying the grounds thereof.

While not literally in point so far as the facts are concerned, the following case presents the general rule in an opinion by Chief Justice KEPHART, Colteryahn Sanitary Dairy v. Milk Control Comm. (1938) 332 Pa. 15, 1 A.2d 775, 122 A.L.R. 1049, at page 1056: "The form of the petition for appeal to the court below in these cases has also been called to our attention. The law requires that the petitioner shall state facts in support of his objections sufficient to constitute a prima facie case. Since this was not done in the present cases, the omission would be fatal to the proceedings. It is well settled . . . that where statutory remedies are provided, the procedure prescribed by the statute must be strictly pursued, to the exclusion of other methods of redress. . . . This is particularly true of special statutory appeals from the action of administrative bodies."

Inasmuch as the matter was not property before the Board of Appeals, the broad powers given to that board by sec. (7) of art. IX of ordinance 12.17 cannot be invoked. Neither can we here consider the merits of the case: Whether Curtis had acquired a sufficient vested interest to permit the issuance of a permit in spite of the amendment of the zoning ordinance changing the nature of the district in which his property was located:

By the Court. — Judgment reversed. Cause remanded with directions to vacate and set aside the action of the Board of Appeals in granting the permit to Curtis.

Summaries of

State ex Rel. Russell v. Board of Appeals

Supreme Court of Wisconsin
May 13, 1947
27 N.W.2d 378 (Wis. 1947)
Case details for

State ex Rel. Russell v. Board of Appeals

Case Details

Full title:STATE EX REL. RUSSELL and others, Appellants, vs. BOARD OF APPEALS OF THE…

Court:Supreme Court of Wisconsin

Date published: May 13, 1947


27 N.W.2d 378 (Wis. 1947)
27 N.W.2d 378

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