Posted by: Patricia Salkin | July 13, 2018

WI Appeals Court Finds Party Was Not in Receipt of a Final Determination Regarding the Subject Conditional Use Permit Until She Procured It from the Register of Deeds

This post was authored by Matthew Loeser, Esq.

On May 2, 2016, the Plan Commission of the Town of Erin approved a conditional use permit (CUP) for Nancy Zelman’s neighbor to open a wine business. Zelman appealed that decision to the Town Board. At a hearing on the appeal, at which Zelman was present, two members of the board voted in favor of a motion to deny the CUP and two members voted against the motion, resulting in a failure of the motion. In this case, Zelman appealed from the circuit court’s grant of summary judgment to the Town of Erin, Plan Commission of the Town of Erin, and Town Board of the Town of Erin.

On appeal, Zelman first contended the circuit court erred in dismissing her claim against the Town on the basis that it was not a proper party. The court found that the Plan Commission and Town Board, rather than not the Town, made the actual decisions from which Zelman sought judicial review by certiorari. As such, the court held the circuit court correctly determined that the Town was not a proper party.

Zelman next challenged the holding that her amended complaint was not filed timely. The record reflected that Zelman filed her amended complaint on November 9, 2016. The circuit court held the filing was untimely because the court believed the thirty-day limitation period began to run on September 19, 2016, when Zelman attended the hearing at which the Town Board voted two-to-two on the motion to deny the CUP. The court determined that under the relevant statutory provisions, the “decision maker” in an administrative appeal was required to mail or deliver its written determination to the person who sought the appeal. Thus, the thirty-day limitation period would begin when the relevant person received the mailed or delivered written determination or copy of the decision on review, not when the CUP was recorded with the register of deeds.

Here, Zelman claimed that she called the register of deeds on October 11, 2016, and confirmed that the CUP had been recorded on October 10, 2016. Zelman then went to the Register of Deeds of Washington County and obtained a certified copy of the CUP that day. The copy of the CUP Zelman provided contained a certification indicating it was recorded on October 10, 2016, which was signed by the “Register of Deeds or Deputy” and indicated it was certified as a true and correct copy on October 11, 2016. Accordingly, the court found the earliest date Zelman could have been in receipt of a final determination related to the CUP was when she procured the CUP from the register of deeds office on October 11, 2016. Therefore, Zelman timely filed her amended complaint because she filed it within thirty days of October 11, 2016.

Zelman v Town of Erin, 2018 WL 3391939 (WI App. 7/11/2018)

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