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COURT OF APPEALS DECISION DATED AND RELEASED DECEMBER 12, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-1897-FT
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT III
CLEMENS V. HEDEEN,
JR.,
Plaintiff-Appellant,
v.
COUNTY OF DOOR and
DOOR
COUNTY BOARD OF
ADJUSTMENT,
Defendants-Respondents.
APPEAL from an order of
the circuit court for Door County:
EDWIN C. STEPHAN, Judge. Affirmed.
Before Cane, P.J.,
LaRocque and Myse, JJ.
PER CURIAM. Clemens Hedeen, Jr., appeals an order
dismissing his motion to enjoin the Door County Board of Adjustment (BOA) from
reviewing the Door County Resource Planning Committee's (RPC) grant of a
conditional use permit.[1] The BOA changed the standard it uses to
review the RPC's decisions from deferential to de novo seven days before it was
scheduled to review the RPC's grant of a permit to Hedeen. The issue is whether Hedeen had a vested
right that prevented application of the BOA's rule amendment to him. Because we conclude that Hedeen had no
vested right in a particular procedural standard of review, we affirm.[2]
The facts are
undisputed. Hedeen applied to the RPC
for a conditional use permit. After
public testimony and debate, the RPC granted Hedeen the permit. Two Door County groups that opposed Hedeen's
planned use of the land appealed the RPC's decision to the BOA pursuant to
§ VIII, C. 1., of the Door County Zoning Ordinance. The BOA's former rule provided a deferential
review of the RPC decision.
Hedeen obtained a
temporary restraining order in the circuit court to prevent the BOA from
reviewing his case until the court heard his motion for an injunction. The court subsequently denied Hedeen's
motion for a temporary injunction and sua sponte dismissed his action for a
permanent injunction and declaratory relief.
Hedeen appeals on the grounds he had vested rights that precluded the
BOA from changing its standard of review and also alleges that the circuit
court erred by dismissing the action for a permanent injunction prior to a
trial on the merits.
We use the same rules of
construction to interpret municipal ordinances and rules as we use to interpret
state statutes. See County
of Sauk v. Trager, 113 Wis.2d 48, 55, 334 N.W.2d 272, 275 (Ct. App. 1983). We conclude that the same test applies to
the BOA's rule change as we apply to a statutory change by the state
legislature.
Generally, statutes are
to be construed prospectively, not retroactively. Gutter v. Seamandel, 103 Wis.2d 1, 17, 308 N.W.2d 403,
411 (1981). However, if a statute is
procedural or remedial rather than substantive, the statute is given
retroactive application unless retroactive application disturbs a contract or
vested rights. Id. Whether a statute has retroactive or
prospective application is a question of law that we review de novo. Salzman v. DNR, 168 Wis.2d
523, 528, 484 N.W.2d 337, 339 (Ct. App. 1992).
The BOA's rule change
regarding its standard of review is procedural:
If a
statute simply prescribes the method—the 'legal machinery'—used in enforcing a
right or a remedy, it is procedural.
If, however, the law creates, defines or regulates rights or
obligations, it is substantive—a change in the substantive law of the state.
City
of Madison v. Town of Madison, 127 Wis.2d 96, 102, 377
N.W.2d 221, 224 (Ct. App. 1985) (citation omitted). Changing a standard of review only changes the "legal
machinery" by which Door County enforces its zoning ordinances because it
does not affect the underlying substantive law regulating the type of
structures that can be built on a particular piece of property.[3]
Because we conclude that
the BOA's rule was procedural, the change has a retroactive application unless
it disturbs a contract or vested rights.
Hedeen argues that he had a vested right in the conditional use permit
granted by the committee, citing Lake Bluff Housing Partners v. City of
South Milwaukee, 188 Wis.2d 230, 525 N.W.2d 59 (Ct. App. 1994). In that decision, we held that a developer
gained vested rights through its reasonable reliance on existing zoning law and
its discussions with city officials. Id.
at 252-53, 525 N.W.2d at 68.
First, Lake Bluff
was recently reversed. Lake Bluff
Housing Partners v. City of South Milwaukee, No. 94-1155 (Wis. Nov. 20,
1995). Our supreme court held that the
developer "obtained no vested rights, because it never submitted an
application for a building permit conforming to the zoning and building code
requirements in effect at the time of the application." Id. at 24.
We distinguish Lake
Bluff on its facts because the ordinance in that case changed
substantive zoning laws. The rule
changed in this case was procedural. We
perceive no inequity in giving the reviewing body de novo review. The underlying zoning code, its purposes and
substance remain unchanged. The de novo
rule does not undermine Hedeen's underlying substantive right to develop the
project under the zoning laws that existed at the time he began his project.
Finally, Hedeen had no
basis for reasonable reliance on the procedural rule. A landowner in a zoning dispute may not rely upon expenditures as
a basis to usurp the appellant's right to an appeal. See State ex rel. Brookside Poultry Farms Inc. v. Jefferson
Cty. Bd. of Adj., 131 Wis.2d 101, 108-10, 388 N.W.2d 593, 595-96
(1986). Absent a change in the
substantive provisions of the County's zoning ordinance, Hedeen's expenditure
of funds prior to resolution of the appeal is not relevant.
Next, Hedeen argues that
the trial court erred by dismissing all his claims with prejudice when only a
motion for a temporary injunction was before it. In order for Hedeen to succeed on his claim for a permanent injunction
or declaratory relief, he would have to prove that he reasonably relied on the
prior standard to obtain a vested right that precluded the BOA's rule change
from applying to him. We have concluded
that Hedeen had no such vested right.
Therefore, dismissal sua sponte was appropriate. See Wisconsin Ass'n of Nursing
Homes, Inc. v. Journal Co., 92 Wis.2d 709, 720-21, 285 N.W.2d 891, 898
(Ct. App. 1979).
By the Court.—Order
affirmed.
This opinion will not be
published. Rule 809.23(1)(b)5, Stats.
[2] Door County argues for the first time on appeal that the BOA has no authority to review an RPC decision. In order to decide that the BOA has no authority to review the RPC's decision, we would have to modify the circuit court's order that affirmed the BOA. A respondent who seeks such a remedy must file a cross-appeal. Section 809.10(2)(b), Stats. The County did not file a cross-appeal; therefore, we will not address its argument. Hedeen concurs in his reply brief that the BOA has no power to review the RPC's decision. We need not consider issues raised for the first time on appeal. See Wirth v. Ehly, 93 Wis.2d 433, 443-44, 287 N.W.2d 140, 145-46 (1980).