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COURT OF APPEALS
DECISION
DATED AND FILED
May 20, 2008
David R. Schanker
Clerk of Court of Appeals
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NOTICE
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This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official
Reports.
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See Wis. Stat. § 808.10 and Rule 809.62.
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Appeal No.
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STATE OF WISCONSIN
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IN COURT OF
APPEALS
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John Bettendorf,
Plaintiff-Appellant,
v.
St. Croix County,
Defendant-Respondent.
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APPEAL
from a judgment of the circuit court for St. Croix County: SCOTT
R. NEEDHAM, Judge. Affirmed.
Before Hoover,
P.J., Peterson and Brunner, JJ.
¶1 HOOVER,
P.J. John Bettendorf appeals a circuit court judgment entered
following remittitur from this court, arguing the circuit court erred in
refusing to hear additional arguments after the case was returned. Because we conclude the court appropriately
applied our decision, we affirm.
Background
¶2 Bettendorf owns a parcel of
land in the Town of Kinnickinnic in St. Croix
County. This parcel was initially zoned
agricultural-residential. In 1985, the
county board enacted St. Croix County, Wis., Ordinance No. 108(85) (1985),
which rezoned the parcel into commercial property. The ordinance read:
NOW THEREFORE, BE IT ORDAINED, that the Comprehensive
Planning, Zoning, and Parks Committee recommends approval for the rezonement to
Commercial from Ag-Residential the following:
A parcel of land located in the NE¼
of the NE¼ of Section 19, T28N-R18W, Town of Kinnickinnic.
This [is] only for John D. Bettendorf’s use and is
not assignable. (Emphasis added.)
In December 1990, Bettendorf applied for and
received a special exception permit, which was granted without conditions on
its transfer. Bettendorf
sought the permit so he could operate a business on the property.
¶3 In 2004, Bettendorf,
who wanted to sell the property and business, sought a declaratory judgment
that the rezoning for one person’s use was beyond the board’s power. He also asserted the contingency that the
rezoning “is not assignable” was severable and should be stricken, leaving the
property zoned commercial but without the transfer limitation. Bettendorf
further sought a declaration that his special exception permit was valid and
transferable, and that the lack of transfer limitation superseded the
restriction in the ordinance. In other
words, Bettendorf
believed the permit’s lack of assignability limits meant he could sell the
permit with the property, giving new owners the same permission he had to
operate a business on the parcel.
¶4 The County admitted the rezoning had been beyond its power
but affirmatively alleged that the ordinance was not severable, rendering the
entire ordinance void from the date of enactment. Further, because a special exception permit
must be consistent with the underlying zoning of a parcel, the County contended
voiding the ordinance would invalidate the permit. The County also raised a handful of other
affirmative defenses, including various estoppel theories, and brought a
forfeiture counterclaim arguing Bettendorf
was in violation of the zoning regulations since the date the invalid ordinance
was enacted. Bettendorf responded to the counterclaim,
raising several affirmative defenses, including an argument that his use was
grandfathered in and that the County was estopped from challenging the
ordinance.
¶5 Both sides moved for summary judgment. Bettendorf
argued the court should strike the invalid part of the ordinance and give
effect to the remainder and, further, should hold the special exception permit
superseded the ordinance, making the permit transferrable with the
property. The County argued the court
should hold the ordinance was not severable. Bettendorf’s response reiterated his initial
arguments and sought dismissal of the County’s counterclaim.
¶6 The court granted Bettendorf’s
motion and struck the portion of Ordinance
108(85) referring to Bettendorf
and limiting assignment. The court
stated the remainder of the ordinance was valid. The court partially based its determination
on a separate zoning ordinance that supported severability whenever
possible. The court also held that
because the ordinance was valid as modified, the special exception permit was
consistent with the zoning and therefore valid.
Further, the court reasoned the permit should run with the property, not
the owner, and was transferrable. The
court also dismissed the counterclaim.
¶7 After the court entered judgment, the County sent a letter
objecting, stating the court had not completely addressed all the issues,
making the judgment premature. However,
the County withdrew all remaining claims so that the court’s order could be
considered final, and the County took its appeal as a matter of right.
¶8 We reversed. See Bettendorf v. St. Croix County,
No. 2005AP1286, unpublished slip op. (WI App Aug. 24, 2006). We concluded that, the severability ordinance
notwithstanding, the county board had clearly intended to rezone Bettendorf’s lot only for
him and would never have enacted the rezoning otherwise. Therefore, we concluded the provision was not
severable and Ordinance 108(85)
was entirely void. Bettendorf, No. 2005AP1286,
unpublished slip op. ¶15.
¶9 We rejected Bettendorf’s
argument that even if the ordinance were deemed invalid, the special exception
permit still permitted the business and could be transferred without
limitation. We instead agreed with the
County that because the ordinance was invalid, the zoning reverted to the
agricultural-residential designation and a special exception permit allowing a
business would be inconsistent with that zoning. Thus, Bettendorf’s
permit necessarily was invalid once the ordinance was voided. Id.,
¶16. Accordingly, we reversed the
court’s judgment and order.
¶10 Bettendorf
petitioned the supreme court for review arguing, among other things, that we
had exceeded the scope of our review by addressing the permit’s validity. He contended the sole issue on appeal was
severability. The supreme court declined
to grant the petition for review. Upon
remittitur, the circuit court entered a new judgment granting summary judgment
to the County. The judgment stated that Ordinance 108(85) had been void from
the date of enactment and the special exception permit was therefore
invalid. Bettendorf appeals, arguing there are
outstanding factual issues on his affirmative defenses.
Discussion
¶11 The procedural history before us is unique. Bettendorf
is, in essence, challenging the fact that the court did not conduct further
proceedings following remittitur. But we
did not remand for further proceedings, only correction of the judgment.
¶12 While Bettendorf asserts factual issues remain, he ignores the
procedural history. The County withdrew
all claims other than the decided questions of severability and the permit’s
validity. The parties filed
cross-motions for summary judgment on the severability issue. This has the effect of leaving only issues of
law. See
Selzer
v. Brunsell Bros., 2002 WI App 232, ¶11, 257 Wis. 2d 809, 652
N.W.2d 806. Thus, we decided that the
ordinance was invalid as a matter of law, not as a question of fact. The special exception permit necessarily came
before us when Bettendorf
invoked it as an alternate basis for affirmation.
¶13 Ultimately, Bettendorf
is attempting to appeal his appeal, but he cites no authority permitting us to
revisit that initial determination. The
County took its appeal as a matter of right from a judgment determining that a
portion of Ordinance 108(85) was
severable and determining the special exception permit was valid and
transferable. The parties addressed the
severability issue and the permit’s validity.
We concluded the circuit court was in error and reversed. The court entered a new judgment in
conformity with our decision. We were
never asked to reconsider our decision, other than indirectly by the petition
for review. Any perceived error in our
prior reasoning could have been brought to our attention before now. Bettendorf
also does not demonstrate that he asked the circuit court for further
proceedings upon remittitur, or for reconsideration of its new order in light
of his belief there were issues yet to be addressed. The circuit court correctly entered a new
judgment in conformity with our prior opinion: further proceedings were
unnecessary to resolve the legal questions.
¶14 Although we resolve this issue in the County’s favor, we take
issue with its brief. We understand
corporation counsel’s obvious frustration over repeated litigation with Bettendorf, particularly
in light of the fact situation in this case.
But corporation counsel’s brief contains a collection of attacks against
Bettendorf’s
attorney
that are nothing more than unfounded, mean-spirited slurs. Given corporation counsel’s grievances
against Bettendorf’s
attorney, such hyperbole is, at the very least, ironic.
¶15 Contending that appellant’s recitation of the facts is
misleading is not an uncommon accusation from respondents. However, corporation counsel goes beyond
noting this perceived misrepresentation and complains that opposing counsel’s
“desire to serve his self-interest is excessive. With apparent hubris, he mocks and insults
this court and the appellate system with this approach and this appeal.” Corporation counsel then comments: “Creating
facts creates a false reality. Bettendorf[’s attorney]
needs a false reality to maintain this appeal.”
¶16 To refute counsel’s contention that this court exceeded its
authority on review, corporation counsel notes that Bettendorf’s attorney “goes beyond what I
could conceive anyone doing. He doesn’t
push the envelope, he totally shreds it.”
Corporation counsel also asserts counsel’s “rant is factually baseless….
The rest of his argument in this regard is the same ranting.” Corporation counsel then cites Alice in Wonderland by Lewis Carroll, to
less-than-persuasive effect, and summarizes this appeal as having a “farcical
theme.”
¶17 “A lawyer should demonstrate respect for the legal system and
for those who serve it, including judges, other
lawyers and public officials.”
(Emphasis added.) Preamble, SCR ch. 20 (2005-06). “The advocate’s function is to present
evidence and argument so that the cause may be decided according to law…. An
advocate can present the cause, protect the record for subsequent review and
preserve professional integrity by patient firmness no less effectively than by
belligerence or theatrics.” Comment,
SCR 20:3.5 (2005-06). Given corporation
counsel’s unwarranted belligerence, it is the determination of this panel that
a copy of this opinion shall be furnished to the Office of Lawyer Regulation
for review and further investigation, as that office may deem appropriate.
By the Court.—Judgment affirmed.