Thomas M. Willan v. Dane County Board of Supervisors

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
November 27, 2024
A party may file with the Supreme Court a
Samuel A. Christensen petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10
and RULE 809.62.

Appeal No. 2023AP1919 Cir. Ct. No. 2022CV766

STATE OF WISCONSIN IN COURT OF APPEALS
DISTRICT IV

THOMAS M. WILLAN AND JULIA A. WILLAN,

PLAINTIFFS-APPELLANTS,

V.

DANE COUNTY BOARD OF SUPERVISORS,

DEFENDANT-RESPONDENT.

APPEAL from an order of the circuit court for Dane County:
JACOB B. FROST, Judge. Affirmed.

Before Kloppenburg, P.J., Blanchard, and Nashold, JJ.

Per curiam opinions may not be cited in any court of this state as precedent

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3).

¶1 PER CURIAM. Thomas Willan and Julia Willan appeal a circuit
court order affirming the Dane County Board of Supervisors’ denial of the
No. 2023AP1919

Willans’ rezoning petition. They also raise issues relating to the court’s earlier
dismissal of their claims for a declaratory judgment. We affirm.

¶2 We first address the arguments that are directed to the circuit court’s
certiorari review of the Board’s denial of the Willans’ rezoning petition. One of
the components of certiorari review is whether the Board proceeded on a correct
theory of law. Miller v. Zoning Bd. of Appeals, 2023 WI 46, ¶9, 407 Wis. 2d 678,
991 N.W.2d 380. This is a question of law that we review de novo. Id.

¶3 The Willans argue that the Board proceeded on an incorrect theory
of law because the granting of their rezoning petition was mandatory. It was
mandatory, they argue, because the new zoning they request was consistent with
the comprehensive land use plan and, therefore, by statute, must be approved. The
argument relies on a statute providing, in part, that a county zoning ordinance that
is enacted or amended after January 1, 2010, “shall be consistent with that local
governmental unit’s comprehensive plan.” WIS. STAT. § 66.1001(3) (2021-22).1

¶4 The Willans misread the statute. They read it as providing that a
county must approve all proposed amendments that would be consistent with the
comprehensive plan. However, the statute does not affirmatively require the
approval of any proposed amendment, but instead merely limits the universe of
potential amendments that may lawfully be approved. It provides only that any
amendments that the county chooses to approve must be consistent with the plan.
In other words, the county is required to approve only amendments that are
consistent with the plan, but it is not required to approve all amendments that are

1
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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consistent with the plan. Accordingly, it was not mandatory for the Board to grant
the Willans’ petition, and the Board did not proceed on an incorrect theory of law.

¶5 Another component of certiorari review is whether the Board’s
decision was arbitrary or unreasonable. Miller, 407 Wis. 2d 678, ¶9 n.7. The
Willans argue that the Board’s denial here was arbitrary or unreasonable, and also
a violation of substantive due process, because it was contrary to WIS. STAT.
§ 66.1001(3). As discussed above, the denial was not contrary to that statute, and
therefore this argument fails.

¶6 The Willans may also intend to argue that denial of their petition
was a violation of their right to equal protection because it was based on an
unreasonable classification of their property as being in a different class from
other agricultural district properties. However, they do not provide a specific
factual basis to support this argument.

¶7 The Willans argue that the Board was required to grant their
rezoning petition so as to reinstate their “vested rights” that existed before a recent
comprehensive rezoning ordinance. However, they cite no legal authority that
supports such a requirement in the rezoning process.

¶8 The Willans argue that they were denied due process because a
zoning administrator was allegedly biased against them. The circuit court rejected
this claim because the administrator was not a Board member who cast a vote on
the decision to deny their petition. On appeal, the Willans offer no rebuttal to that
analysis. And, furthermore, recent case law clarifies that there is no due process
right to an impartial decision-maker when a legislative body such as the Board
here amends a generally applicable law such as a zoning ordinance. Miller, 407
Wis. 2d 678, ¶1.

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¶9 In the course of denying the Willans’ petition, the Board found that
the Willans could achieve the goal that they stated as the reason for the rezoning
by instead seeking a conditional use permit. The Willans appear to argue that it
was error for the Board to consider the availability of such a permit because their
rezoning petition did not give the Board jurisdiction to consider granting that
permit. However, the Willans cite no law that makes it improper for a local
legislative body to consider potential alternative courses of action that may be
open to a rezoning applicant.

¶10 In addition to seeking certiorari review, the Willans sought a
declaratory judgment. The circuit court dismissed all named defendants except the
Board in orders entered on September 14, 2022, and January 27, 2023. At that
point, the certiorari claim against the Board continued. However, as to the other
defendants who were dismissed, these orders were final orders that were
appealable as a matter of right because the orders disposed of the entire matter in
litigation as to one or more parties. See WIS. STAT. § 808.03(1). The Willans
commenced this appeal on October 13, 2023, which is beyond the ninety-day time
to appeal provided in WIS. STAT. § 808.04(1). A timely notice of appeal is
necessary to confer jurisdiction on this court. WIS. STAT. RULE 809.10(1)(e).
Accordingly, the Willans’ claims for declaratory judgment against the defendants
other than the Board are not before us, and this opinion does not have an effect on
those claims. Our caption, which includes only the Board as a respondent on
appeal, is consistent with that conclusion, and the Willans did not ask to have
those dismissed defendants added to the caption.

¶11 The Willans argue that the circuit court erroneously dismissed their
claim that a regulatory taking occurred when their property was rezoned during a
comprehensive revision that occurred before their rezoning petition. The court

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dismissed this claim because the Willans did not allege facts showing that the
rezoning denied them all or substantially all practical uses of the property. On
appeal, the Willans agree that this was the correct legal test. They argue that the
barn on their property is now restricted from agricultural uses that were previously
permitted. However, this assertion, even if true, does not establish that they have
been denied all or substantially all practical use of the property. Therefore, we
affirm the dismissal of this claim.

¶12 The Willans sought a declaratory judgment based on an assertion
that a 1998 certified survey map (CSM) involving their property was unlawful and
must be corrected. The circuit court first ordered that, if the Willans were seeking
leave to amend their complaint to add this as a claim, they must file an additional
brief addressing whether any other parties are necessary to adjudicate the claim,
such as other landowners affected by that CSM. Later, the court dismissed the
purported claim because, although the Willans filed a brief, they did not file a
motion seeking leave to amend their complaint to add this as a claim.

¶13 On appeal, the Willans argue that a suit for declaratory judgment
regarding an ordinance such as a CSM need not name every person whose
interests are affected by the ordinance, and that in any case here those persons
were notified of this suit and could intervene, if they chose to. However, the
Willans do not dispute the basis for the circuit court’s decision by arguing that
they moved for leave to amend, or that such a motion was unnecessary.
Therefore, we affirm this decision.

¶14 The Willans argue that they are entitled to a default judgment due to
what they assert was the Board’s failure to file a timely answer. The Willans filed
a motion in the circuit court for that relief, along with a motion to strike the

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answer. The parties appear to agree that the court did not expressly decide those
motions. The Board responds that no default occurred because the Board had
timely filed a motion to dismiss and aspects of that motion were still pending for a
decision by the court. The applicable procedural rules provide that a motion to
dismiss shall be made before “a further pleading,” such as an answer, and that the
time to file an answer then runs from the court’s denial of the dismissal motion, if
it is denied. WIS. STAT. § 802.06(1)(a), (2)(b). Accordingly, we conclude that a
default did not occur here.

¶15 Finally, to the extent that the Willans may have made additional
arguments on appeal that we have not specifically addressed, we have considered
and rejected those arguments, to the extent that we could discern them.

By the Court.—Order affirmed.

This opinion will not be published. See WIS. STAT.
RULE 809.23(1)(b)5.

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