Posted by: Patricia Salkin | May 2, 2015

WI Appeals Court Holds Board Had Inherent Authority to Reconsider a Decision Based on a Mistake

NextMedia Outdoor, Inc. owned a legal, nonconforming billboard sign in the Village of Howard that was displaced as the result of a Wisconsin Department of Transportation (DOT) highway project. NextMedia sought to have the sign “realigned” by filing an application for realignment with the Village, which the Village denied under a local ordinance implementing the new state law. NextMedia appealed to the Zoning Board of Appeals of the Village of Howard, which reversed the Village’s decision and authorized NextMedia to realign the sign with certain conditions. The DOT objected to the Board’s decision, advising the Village it had acquired, by condemnation, NextMedia’s permit rights to the sign months prior to the Board’s decision. The Village then filed a motion for reconsideration, and the Board held a second hearing on the matter. The Board reversed its earlier decision, concluding NextMedia’s right to apply for realignment ceased when the DOT acquired NextMedia’s permit rights. NextMedia sought certiorari review, and the circuit court agreed with NextMedia and entered a judgment concluding the Board lacked reconsideration authority and erred as a matter of law by considering the evidence submitted during the reconsideration proceedings.

NextMedia’s primary assertion was that the Board exceeded its authority when it reconsidered its prior decision. The court found that although the general rule is that reconsideration falls outside the scope of a zoning board’s authority, reconsideration is nonetheless justified when the initial decision is based on a mistake of fact or law. The court reasoned that permitting reconsideration in such limited circumstances does not fatally undermine the need for finality in municipal zoning decisions, but ensures decisions are not based on fraud or mistake. Here, any permit to realign the sign issued to NextMedia could only have been based on a mistake, since NextMedia no longer owned the property rights necessary to conduct such a realignment.

Accordingly the court reversed, holding the Board was entitled to reconsider its May 12, 2012 decision and deny NextMedia realignment, after the real owner of the rights attendant to the sign’s location on the property at issue, the DOT, objected and explained critical facts that NextMedia knew at all times but failed to disclose to the Village or the Board.

Nextmedia Outdoor, Inc. v Village of Howard, 2015 WL 1637200 (WI App. 4/14/2015)

The opinion can be accessed at: http://www.wicourts.gov/ca/opinion/DisplayDocument.html?content=html&seqNo=139848


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