Posted by: Patricia Salkin | December 2, 2016

WI Appeals Court Finds Plaintiff Lacked Standing to Challenge Commission’s Decision

Plaintiff Robert Cook owned two condominium units at Teal Lake Quiet Shores Condominiums in the Town of Spider Lake. Access to Cook’s units was provided by Ross Road. The Chippewa Valley Bank owned an adjacent parcel, and needed to obtain the approval of the Town of Spider Lake Plan and Review Commission to subdivide its property. Accordingly, the bank submitted a Certified Survey Map (CSM) to the Commission. The Board made the “findings of fact” that: the Commission’s approval of the CSM did not affect Cook’s ability to access his condominium units; the approval of the CSM did not make any changes to the private access road; and the Teal Lake Quite Shores Condominium Association was the proper party to appeal the Commission’s decision, not Cook. Based on these findings, the Board concluded Cook was not “a person aggrieved” by the Commission’s decision, and therefore lacked standing to appeal it. The Board dismissed Cook’s appeal, and the circuit court affirmed, concluding the CSM’s creation of two lots had “no articulable negative impact” on Cook. The court further concluded the condominium association, not Cook, was “potentially the proper party to any challenge to the CSM.”

The court first found that while the stated purpose of the Town’s land use ordinance was to promote “the public health, safety and general welfare,” Cook failed to explain how the specific decision at issue in this case, approval of the CSM, directly affected the legally protected interests of all landowners in the Town. Cook next argued he was aggrieved by the Commission’s decision because its approval of the CSM “devalued his property interest”; however, Cook failed to raise this argument before either the Board or the circuit court, and the court therefore declined to address it. Furthermore, Cook failed to cite any evidence regarding who owned the access road, who maintained the road, whether there was a maintenance agreement regarding the road, whether he was a party to that agreement, and the number of other parties who used the road to access their properties. Absent evidence on these points, the court found that it could not meaningfully address Cook’s claim that the subdivision of the bank’s property had directly affected his legally protected interest in using the road to access his condominium units. Moreover, Cook’s alleged injuries regarding maintenance of the private access road were purely speculative, as Cook failed to present any evidence, beyond mere conjecture, that increasing the number of owners of the property that was subject to the CSM from one to two would make it substantially harder to negotiate a maintenance agreement regarding the private access road.

In its decision, the Board found that the Commission’s approval of the CSM did not change the private access road, nor did it affect Cook’s ability to access his condominium units. Substantial evidence supports these findings. Furthermore, while Wis. Stat. § 62.23(7)(e)10 expressly permitted both aggrieved persons and taxpayers to challenge a board of appeals’ decisions via certiorari, § 62.23(7)(e)4 merely stated that aggrieved persons may appeal a plan commission’s decisions to the board of appeals, without mentioning taxpayers.  Thus, the court rejected Cook’s argument that he had standing to challenge the Commission’s approval of the CSM based solely on his status as a taxpayer.

Cook v. Town of Spider Lake Zoning Bd. of Appeals, 2016 WL 6592143 (WI App. 11/8/2016)

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