WI Appeals Court Finds the Challenger of Decision to Allow a Use Variance for a Self-Service Storage Facility Lacked Standing

This post was authored by Matthew Loescher, Esq.

Hummingbird Storage, LLC, appealed an order dismissing its action for certiorari review of the decision of the City of Milwaukee’s Board of Zoning Appeals (“BOZA”), which allowed a use variance for a self-service storage facility (“Morgan Avenue property”), owned by Acquisition B, in the City. In this case, Hummingbird claimed that the trial court erred as a matter of law by granting BOZA and Acquisition B’s motion to dismiss the action based on Hummingbird’s lack of standing to challenge BOZA’s decision. 

On appeal, Hummingbird first contended that the allegations of the complaint prove that it is both a person aggrieved and a taxpayer that will sustain pecuniary losses. Conversely, Acquisition B contended that the term taxpayer should be construed “to be similar to the definition of” a person aggrieved in the same statute. Acquisition B further argued that a taxpayer may only appeal if he or she has sustained a loss or has been negatively impacted by a BOZA decision, and that a taxpayer appealing a BOZA decision would have standing for the same reason as would a plaintiff in a taxpayer’s action. As Hummingbird failed to address Acquisition B’s arguments, the court found Hummingbird had conceded that its allegations did not establish its standing under § 62.23(7)(e)10., either as an aggrieved person or as a taxpayer.

Hummingbird next alleged it had an independent basis for standing based on its claim that BOZA’s grant of the use variance violated the City’s comprehensive plan for the area where the Morgan Avenue property was located. The BOZA contended that WIS. STAT. § 62.23(7)(e)10. unambiguously created two categories of individuals with standing to seek review of a BOZA decision – aggrieved persons and taxpayers – and that Hummingbird failed to explain why the court should interpret § 62.23(7)(e)10. as creating a third basis for standing. As Hummingbird did not address BOZA’s arguments in its reply brief, and failed to address Acquisition B’s argument that it cited no supporting authority, the court found that Hummingbird conceded those arguments. As such, the court affirmed the trial court’s order dismissing Hummingbird’s action based on its lack of standing. 

Hummingbird Storage, LLC v City of Milwaukee Zoning Board of Appeals, 2020 WL 2391103 (WI App. 5/12/2020)