July/August 2023 Issue
Also in this issue: US Supreme Court Finds Minnesota County’s Failure to Return Excess Equity to Landowner Unconstitutional — What Does it Mean for Wisconsin? | Law Enforcement and Fire/EMS Maintenance of Effort Requirements for Shared Revenue Funding | Legislature Preempts Local Passage Requirements for Zoning Amendments
Trustee’s Vote to Rezone Family Member’s Property not a Violation of Due Process
Julia Potter | 08.15.23
In a recent unanimous decision, the Wisconsin Supreme Court held that there is no due process right to an impartial decision-maker when a legislative body like a Village Board or Common Council votes to rezone property. The case, Miller v. Zoning Board of Appeals of the Village of Lyndon Station, 2023 WI 46, involved a Village Trustee who cast the deciding vote in favor of rezoning property owned by her daughter and son-in-law, the Whaleys, with whom she was living at the time of the vote.
The Whaleys owned a 1.87-acre parcel that was zoned residential. They accepted an offer to purchase the property that was contingent upon it being rezoned to commercial to allow for the construction of a chain store. They submitted an application for rezoning, which went first to the Plan Commission for a recommendation, and then to the Village Board for a public hearing and a final decision. Some members of the public spoke at the hearing against the proposed rezoning, including Thomas Miller, the plaintiff in this lawsuit. Miller opposed the rezoning both because the proposed chain store would compete against the local business he owned and because he felt that the Trustee in question had a conflict of interest. After closing the hearing, the Village Board voted 2 – 1 to approve the rezoning, with the Trustee in question casting the deciding vote in favor of her daughter and son-in-law’s application.
Mr. Miller appealed to the Village’s Zoning Board of Appeals, which upheld the Village Board’s decision approving the rezoning. He then sued the Zoning Board of Appeals and the Village Board in circuit court, arguing that the Trustee had an obligation to recuse herself from the vote due to a conflict of interest. The circuit court agreed with Mr. Miller, concluding that the Trustee’s participation in the vote had violated Mr. Miller’s right to due process because the Trustee was not a fair and impartial decision-maker. On appeal, the Wisconsin Supreme Court disagreed, holding that a vote to rezone property does not trigger the due process entitlement to a fair and impartial decisionmaker.
The Wisconsin Supreme Court’s decision hinged on the distinction between adjudicative (sometimes also referred to as “quasi-judicial”) decisions and legislative decisions. Adjudicative decisions, such as the decision to grant a variance or a conditional use permit, involve applying existing laws or ordinances to individual facts and require a fair hearing before an impartial decision-maker. Legislative decisions, on the other hand, involve making a prospective change by enacting, repealing, or amending a law or ordinance and do not require impartial decision-making. The court pointed out that legislators “often run for office promising to use legislative power to accomplish specific policy objectives” and concluded that partiality among legislators does not violate the due process rights of those impacted by a legislative decision — rather, “the primary check on legislators acting contrary to the public interest when legislating is the political process.”
The court determined that decision to rezone the Whaleys’ property was a legislative act because it did not involve applying existing ordinances to individual facts or circumstances, but instead involved amending the Village’s generally applicable zoning ordinance to make a prospective change to the zoning classification of the Whaleys’ property. This was true even though this particular amendment only affected the Whaleys’ property and did not rezone any other parcels. Because the court held that the rezoning was a legislative act, it did not trigger the due process requirement of an impartial decision-maker and therefore it was not improper for the Trustee to cast the deciding vote in favor of her daughter and son-in-law’s rezoning application.
A word of caution, however: this case was decided solely on the basis of the due process guarantees contained in Article 14 of the US Constitution and Article 1, Section 1 of the Wisconsin Constitution. Many municipalities have adopted local ethics codes that contain more stringent conflict of interest standards and would have required recusal in this case. Local public officials should familiarize themselves not only with the requirements of due process, but also with their municipality’s local ethics code (if any) and the statutory code of ethics applicable to local government officials, Wis. Stat. §19.59. Finally, local public officials should be aware that, even if the law does not require that they recuse themselves from participating in the vote on a particular matter, they may still choose to do so in order to avoid any appearance of bias or impropriety.
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