Acevedo operates a child day care center in a two-family dwelling located in a general residential zoning district. When Acevedo sought to obtain an additional license to operate a day care center on the second floor of the two-family dwelling, the licensing supervisor expressed concern to the Zoning Coordinator. In turn, the Zoning Coordinator informed Acevedo that having a day care center in both units would violate the city zoning ordinance. Acevedo filed a request for an administrative appeal but the Zoning Board of Appeals affirmed the city’s decision. A cease and desist order was issued which prohibited Acevedo from having day care operations at the property. Acevedo filed a certiorari action and only named the city as a party. She later amended the request and named the city as well as the Zoning Board. The City’s motion to dismiss was granted by the lower court and Acevedo appealed.
Acevedo contends that the lower court erred by dismissing the city as a party. Here, the Court looked to the city planning statute to determine whether the city would be a proper party to an action alleging the Zoning Board violated her rights. The Court explained that the statute clearly conveyed the mechanisms available to Acevedo for an appeal of the Zoning Board’s decision. In other words, the Board was the properly named party because they made the decision from which Acevedo seeks review. The Wisconsin Court of Appeals acknowledged that in many published opinions reviewing zoning decisions, a municipality was named as the defendant, but in none of those cases was the issue raised, so the court found them of no persuasive value. Therefore, in an appeal of a zoning decision, the only proper party to the lawsuit is the zoning board of appeals, and not the city.
Acevedo v. City of Kenosha, 793 N.W.2d 500 (Wis.App.12/22/2010)
The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=57948
