Opinion
March 2, 1967. —
April 11, 1967.
APPEAL from a judgment of the circuit court for Milwaukee county: JOHN A. DECKER, Circuit Judge. Reversed.
For the appellants there were briefs by Mount Keck, attorneys, and Maxwell H. Herriott of counsel, all of Milwaukee, and oral argument by Mr. Herriott.
For the respondents there was a brief by Godfrey, Trump Davidson, attorneys, and Kneeland A. Godfrey and Thomas W. Godfrey of counsel, all of Milwaukee, and oral argument by Thomas W. Godfrey.
On February 15, 1966, a public hearing was held before the common council for the city of Wauwatosa on an ordinance creating a new zoning district and setting forth regulations for "Garden Village Development" known as "G" Residence District. This ordinance purported to change the property in question from "A" and "B" Greenhouse District, "AAA" Residence District, and "BB" Residence District to "G" Residence District. The ordinance had a one-acre minimum requirement for such a development and a specific minimum requirement for the size of the apartment living units. A protest to the change in zoning had been filed by the plaintiffs and by Bernard and Clara Hess. Pending further study by the city attorney and the common council, action on the ordinance was laid over to the council meeting on March 1, 1966.
On February 25, 1966, William J. Grede, who owned land adjacent to the proposed apartment development, lodged the following protest:
"We the undersigned, owners of properties located in the City of Wauwatosa, which properties are directly adjacent to those properties known as the Walter R. Krahn Greenhouse property, and the Arthur St. George property, object to the re-zoning of these properties, or any portion of these properties, to create a new zoning district known as `G' Residence District, 'Garden Village Development.'"
On March 1st, prior to the council meeting, Bernard and Clara Hess withdrew their protest to the zoning change filed prior to the public hearing.
At the common council meeting the agenda contained a new ordinance proposed by Alderman Stach in connection with the apartment development zoning change. The new ordinance provided that there be a minimum of ten acres in reference to the site for the development of the garden-type project and also increased the minimum space requirements for the apartments. The city attorney stated that in order for the new ordinance to be considered, it must go through all the preliminary procedures: Assignment to the committee on public welfare and city plan commission, legal notices, and a public hearing. The city attorney stated that the new ordinance constituted a substantial change and could not be acted upon unless the first ordinance was p]aced on file. The city attorney also stated that if the first ordinance was put on file all the protests, petitions and communications in connection with the ordinance would go on file as well.
Sec. 62.23(7) (d), Stats. spells out the procedure to be used by cities in enacting zoning ordinances. This section also provides a method for amending zoning regulations. Adjacent landholders are protected from changes by a protest provision which provides:
". . . In case of a protest against such change, duly signed and acknowledged by the owners of 20% or more either of the areas of the land included in such proposed change, or by the owners of 20% or more of the area of the land immediately adjacent extending 100 feet therefrom, or by the owners of 20% or more of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of three-fourths of the members of the council. . . ."
The city attorney ruled that if the Grede protest and the Hess protest (both as adjacent property owners) were considered together, the protesting landholders would constitute 20 percent, but the Hess protest had been withdrawn so that a simple majority of the common council would be sufficient to enact the first ordinance. The city attorney also ruled that the protests of the plaintiffs and all other property owners were ineffective because they did not own property adjacent to the proposed "G" Residence District zoned property. The city attorney stated that all protests to the new ordinance must be made again, either before or at the time of the public hearing, thereby notifying all parties of this fact. Thereupon, a motion was made to place the first ordinance on file and the motion passed by a vote of 12 to four.
Following the council meeting on March 1, 1966, a written protest was drafted stating that the adjacent landowners protested the second ordinance rezoning the property in question for a variety of stated reasons. This protest stated the features of the second proposed ordinance (". . . it would be permissible to place apartment buildings containing not to exceed 10 one and/or two bedroom apartments each with four such buildings maximum adjoined by a common wall arranged around plazas and patios, erected on a tract of land of no less than 10 acres . . . ."), and was signed by Bernard and Clara Hess. This protest against the proposed new zoning ordinance was presented to William J. Grede who declined to sign the protest and returned it to plaintiffs' attorneys unsigned.
On April 12, 1966, a public hearing was held on the second zoning ordinance. The city attorney ruled that the Hess protest was not made by a landowner owning more than 20 percent of the land in a 100-foot strip adjacent to the property to be rezoned so as to thus require a favorable three-fourths vote of the council. The second ordinance was enacted into law by a nine to seven vote. A week later, a motion to reconsider the ordinance was made and defeated by a vote of eight to seven. Thus, the second ordinance was enacted.
Court action was started by the plaintiffs on April 9, 1966, to compel the city council and the city of Wauwatosa to recognize the validity of their protests. The plaintiffs asked for a declaratory judgment as to the effectiveness of their protests and a temporary injunction prohibiting council action on the ordinance pending the outcome of their suit. An order to show cause was issued on April 11, 1966, by Judge LEO B. HANLEY, but the temporary injunction was subsequently denied. On April 25, 1966, defendants Alan Crawford, Daniel Corcoran and Danford Realty Corporation intervened. Subsequently, Bernard Hess, Clara Hess and William J. Grede were impleaded as defendants. The parties stipulated to all of the facts recited above and submitted an agreed case to the court pursuant to sec. 269.01, Stats. The parties also stipulated to the fact that the Grede property and the Hess property were adjacent to the property subject to the second ordinance and "constitute in excess of 20% of the land immediately adjacent extending 100 feet from the said new zoning district proposed in said amending ordinance" so that a three-fourths majority was required for enactment.
Two issues were presented to Judge DECKER for decision:
(1) Was the Grede protest effective against the new ordinance so that a three-fourths majority vote of the common council was required to enact the ordinance into law?
(2) Was the protest of the Preschers valid so that a three-fourths majority was required?
The trial court held that the plaintiffs' (Preschers') protest was not valid within the terms of sec. 62.23(7) (d), Stats. However, Judge DECKER ruled that Grede's protest was valid and applied to the new ordinance, thereby invalidating the ordinance because of enactment by less than the statutory three-fourths majority.
A motion was made to reopen the case on the ground that the Grede protest was ineffective. In addition the defendants wanted to reopen the case on the ground that the total area of the 100-foot strip adjacent to the property to be rezoned had been incorrectly computed. The defendants alleged that the total area was actually larger so that the land owned by both Grede and Hess did not constitute more than 20 percent of the total area, as required to invoke a three-fourths majority vote to enact zoning changes. The alleged reason for this inaccuracy as to total area was that the engineer had incorrectly excluded as part of the total area the area encompassed by city streets within the 100-foot strip. The trial judge refused to reopen the case and held that even if he did, the city engineer's calculation was proper. Intervening defendants (the developers) appeal.
Two issues are dispositive of this appeal:
1. Does a protest filed against an initial zoning ordinance, which protest and ordinance were placed on file when a second ordinance was introduced, apply against the second ordinance where the protesting party was given an opportunity to sign a new protest against the second ordinance but declined to do so?
2. Is the protest area contemplated by sec. 62.23(7) (d), Stats., within or adjacent to the proposed rezoning rather than the entire tract so that the protest of the plaintiffs is not effective?
The Grede Protest.
The protest signed and filed by Grede was effective as to the first ordinance. That protest was couched in broad terms against a change of zoning. But that protest is not effective as to the second ordinance. It is defective for the reason that Grede was given an opportunity to join in the protest as to the second ordinance and unequivocally refused to do so.
There may be instances where a categorically stated protest may be so plain that it may stand not only against an ordinance but also against a revision that contemplates no substantial change, and which is considered in such close proximity that it is clear that the protest as to the original ordinance should stand as to the revision. But this is not the instant situation. The two ordinances contained differences substantial enough to warrant an entire legislative reprocessing of the second ordinance. Both changes from the original ordinance involved upgrading in the quality of the apartment buildings. Furthermore, the ordinances were not contiguous in time. The first ordinance was placed on file on March 1, 1966, and the second ordinance was not enacted until April 12, 1966. This gave the protesters six weeks to marshal their forces. Moreover, the protesters were on notice from the express statements of the city attorney that the council would not consider the Grede protest valid against the second ordinance unless Grede refiled his protest. After the March 1st meeting of the council, the proposed second ordinance went through the procedure requisite for enactment by the council. The ordinance was referred to the public welfare committee and the city plan commission. Legal notice was made and a public hearing was held. All this involved a six-week time lag affording Grede a chance to file his protest anew.
The trial court's major consideration in determining that Grede's protest as to the first ordinance applied to the second ordinance was that the protest was couched in broad terms against changing the zoning of the proposed land to permit any apartment development. Essentially, this involved a determination by the trial court of what Grede's intention was as to the second ordinance by the language he used in the protest to the first ordinance. The facts of the instant case do not warrant such an assumption.
Grede was tendered an opportunity to protest and could have done so by the simple act of signing his name. The written protest tendered to Grede contained a precise statement of what the proposed second ordinance was designed to do, and he declined to sign it. Moreover, he took the trouble to return the unsigned protest to the soliciting attorney. This manifests a clear intention that Grede did not want to protest the second ordinance. By giving Grede's protest to the initial ordinance effect to the second ordinance, the trial court has resurrected the first protest in spite of an intention on the part of Grede not to protest, although offered every opportunity to do so.
A protester should not be permitted to tie up an entire legislative process by filing a general protest at a given point in time. It is true that sec. 62.23(7) (d), Stats., is designed to protect adjacent landowners from zoning changes, and the statutes have extended a great deal of protection to such persons. Nevertheless, the fact remains that a majority of the councilmen voted for the second ordinance. Protesters are permitted to block the wishes of a simple majority, but positive action should be required. The trial court contends that formal action is required to withdraw a protest and cites several cases to this effect. All these cases deal with filing a petition to initiate a referendum and require that a verified statement be submitted to remove a name from a petition. These cases are not similar to the case at bar because, in the case at bar, the ordinance to which the protest was directed was withdrawn, and an intention not to protest the new ordinance was manifested.
Kelly v. State (1938), 135 Fla. 346, 185 So. 157; State ex rel. Westhues v. Sullivan (1920), 283 Mo. 546, 224 S.W. 327; Halgren v. Welling (1936), 91 Utah 16, 63 P.2d 550.
Thus, the trial court incorrectly ruled that the Grede protest was valid against the second ordinance. Grede's land was an integral part of the adjacent protester's requirement of 20 percent of the land adjacent to the proposed change. Without Grede's protest (assuming plaintiffs' protest is invalid) the protesters did not have the 20 percent of land required to force enactment by a three-fourths majority.
Thus, it becomes crucial whether or not the plaintiffs' protest was valid. Plaintiffs argue that their property borders on the whole zoning district, in which district the zoning of an area of land is being changed. They contend that the area of land around the entire district, rather than around the area located within the district which is directly affected by the rezoning, should be determinative for purposes of calculating the 20 percent protest. They conclude that under this reasoning their protest should be valid.
The plain language of the statute negatives the plaintiffs' contention. Sec. 62.23(7) (d), Stats., provides for three categories of protesters sufficient to invoke the three-fourths majority.
". . . In case of a protest against such change, duly signed and acknowledged by the owners of 20% or more either of the areas of the land included in such proposed change, or by the owners of 20% or more of the area of the land immediately adjacent extending 100 feet therefrom, or by the owners of 20 % or more of the land directly opposite thereto extending 100 feet from the street frontage of such opposite land, such amendment shall not become effective except by the favorable vote of three-fourths of the members of the council." (Emphasis added.)
The reference of owners of land immediately adjacent is to the area of land "included in such proposed change." In other words, only landowners adjacent to the land where the proposed change is to be made are to be considered in determining whether the 20 percent requirement is met. The concept of protest advanced by plaintiffs is not sanctioned by the language of the statute.
Furthermore, from a policy standpoint, the protest statute should not embrace this district concept. The purpose of sec. 62.23(7) (c), Stats. was to permit protest by landowners directly affected by zoning changes. Landowners whose property borders on land to be rezoned are directly affected because their land value and enjoyment of their property decreases. People on the periphery of areas to be rezoned are not so directly affected. Further, if the concept of "adjacent to the zoning district" were adopted, it would be harder to meet protest requirements because the area of land would be greater and the interest of the landowners in protesting would be less.
Protest statutes similar to sec. 62.23(7) (d) of the Wisconsin statutes are common to several states and the district theory of plaintiffs has always been rejected. In Hoelzer v. Incorporated Village of New Hyde Park a general change affecting the entire town was involved. The court stated that if the zoning change was specific, i.e., affecting a particular area of land, then the eligibility for protest would apply only to landowners adjacent to land directly affected. Similarly, in Parsons v. Wethersfield, the court construed the term "immediately adjacent" to mean directly abutting the land proposed to be rezoned. The trial court's conclusion that the plaintiffs were not eligible protesters is well warranted and the plaintiffs' protest is invalid.
(1956), 4 Misc.2d 96, 150 N.Y.Supp.2d 765.
(1948), 135 Conn. 24, 60 A.2d 771, 4 A.L.R.2d 330. See also B. R. M. Realty Corp. v. Flynn (1963), 39 Misc.2d 1049; 242 N.Y.Supp.2d 338, reversed on other grounds (1964), 20 A.D.2d 798, 248 N.Y.Supp.2d 456; Penny v. Durham (1959), 249 N.C. 596, 107 S.E.2d 72.
Because of our determination herein that the Grede and Preacher protests are invalid, it is unnecessary to consider the question of whether or not dedicated or public lands should be included in calculating the total area within the 100-foot strip.
By the Court. — Judgment reversed.
HANSEN, J., took no part.