WI Appeals Court Hold Rezoning is a Legislative Act and Trustee who was Mother of one of the Applicants for the Rezoning Did Not Violate the State Ethics Code

This post was authored by Kevin Sun, Jacob D. Fuchsberg Touro Law Center

Larry and Kristi Whaley applied to rezone a 1.87 vacant lot zoned residential to allow for a commercial use. His lot was surrounded by other commercial lots, and he desired to sell it, the sale of which was conditioned on the rezoning. The village board granted the application and rezoned property. Miller, the neighboring property owner appealed. Miller alleged that when Whaley submitted the application, a Trustee, who is a the mother of Kristi Whaley, actively participating in the rezoning. Miller claimed that as a result the vote violated his constitutional due process rights to be heard in a fair and impartial hearing. The explanation was that there was no conflict of interest since she will not receive any portion of the proceeds. During the hearing, only 2 residents supported the sale, but 9 residents opposed it. Despite this, the rezoning proceeded forward as the Trustee, the family member of the Whaleys, cast the deciding vote in a 2-1 split.

On appeal, the Court held that the village board’s decision to rezone property from residential to commercial was legislative act and that the circuit court had jurisdiction to consider any purported error in village board’s legislative act of rezoning property from residential to commercial. As to the alleged conflict of interest, the Court held that the participation of village board trustee in a proceeding to rezone property from residential to commercial, even though the trustee was property owner’s mother, did not violate the due process.

In determining that the Trustee did not violate the State code of ethics for public officials and employees, the Court analyzed WIS. STAT. 19.41-19.59, specifically paragraph 19.59(1)(c) which provides that a local public official is generally barred from taking official actions in which the official or an immediate family member has a substantial financial interest:

Except as otherwise provided in par. (d), no local public official may:

1. Take any official action significantly affects a matter in which the official, [or] a member of his or her immediate family … has a substantial financial interest.

2. Use his or her office of position in a way that produces or assists in the production of a substantial benefit, direct or indirect, for the official, [or] one or more members of the official’s immediate family either separately or together[.]

The Court said that standing alone, this paragraph could be read to prevent the Trustee from participating in the proceedings provided that the Whaleys are considered “immediate family members.” However, the Court continued, the paragraph that immediately follows WIS. STAT. 19.59(c) contains an exception for actions that modify a municipal ordinance, and that exception is applicable here. Paragraph 19.59(1)(d) provides:

Paragraph (c) does not prohibit a local public official from taking any action concerning the legal payment of salaries of employee benefits or reimbursement of actual and necessary expenses, or prohibit a local public official from taking official action with respect to any proposal to modify a county or municipal ordinance.

As a result, the Court concluded that there was not a statutory conflict of interest and Miller’s due process rights were not violated.

Miller v. Zoning Board of Appeals of Village of Lyndon Station, 2022 WL 3650752 (WI App. 8/25/2022)

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